Barbara Kennedy Ward v. State ( 2015 )

Affirmed; Opinion Filed June 23, 2015.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00954-CR
BARBARA KENNEDY WARD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-0973060-V
MEMORANDUM OPINION
Before Justices Fillmore, Myers, and Evans
Opinion by Justice Evans
Barbara Kennedy Ward was convicted of aggravated assault with a deadly weapon after a
jury found that she had stabbed her ex-common-law husband with a knife. In her sole issue,
appellant asserts she received ineffective assistance of counsel because evidence adduced at the
punishment hearing suggested a theory of self-defense that was not raised by the defense during
the guilt/innocence phase of trial. We affirm the trial court’s judgment.
Appellant’s ineffective assistance claim is based solely on her own testimony during the
punishment stage of trial. She did not testify at the guilt/innocence stage. Specifically, appellant
contends her testimony that on the day of the incident in question “my ex-husband was trying to
kill me with a butcher knife and he cut me,” along with her description of the injuries she
suffered on that day, was sufficient to support a self-defense claim. She therefore argues defense
counsel was ineffective for failing to present a self-defense claim to the jury at the
guilt/innocence stage.
To prevail on an ineffective assistance of counsel claim, appellant must establish both
that her trial counsel performed deficiently and that the deficiency prejudiced her. See State v.
Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (citing Strickland v. Washington, 466
U.S. 668, 687 (1984). With respect to the first prong, the record on appeal must be sufficiently
developed to overcome the strong presumption of reasonable assistance. See Thompson v. State,
9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999). Absent an opportunity for trial counsel to
explain his actions, we will not conclude his representation deficient “unless the challenged
conduct was so outrageous that no competent attorney would have engaged in it.” See Garcia v.
State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Texas procedure makes it “virtually
impossible” for appellate counsel to present an adequate ineffective assistance claim on direct
review. See Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013). This is because the inherent nature
of most ineffective assistance of trial counsel claims means that the trial court record “will often
fail to ‘contai[n] the information necessary to substantiate’ the claim.” Id. (quoting Ex parte
Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997) (en banc)). Consequently, the better
procedural mechanism for pursuing a claim of ineffective assistance is almost always through
writ of habeas corpus proceedings. Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App.
2003).
The record does not show why trial counsel failed to raise a self-defense claim at the
guilt/innocence stage of trial. Without evidence showing trial counsel’s explanation as to why
self-defense was not raised, we cannot conclude that abandoning the defense was not reasonable
strategy. See Thompson, 9 S.W.3d at 813–14. Moreover, self-defense is a justification theory
that necessarily requires a defendant to admit that the conduct occurred. See Ford v. State, 112
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S.W.3d 788, 794 (Tex. App.—Houston [14th Dist.] 2003, no pet.). In her testimony during the
punishment stage, appellant denied stabbing her husband on the date in question. Thus, the
record demonstrates appellant denied committing the conduct forming the basis of the charge
against her, testimony that is clearly inconsistent with pursuing a self-defense claim. Based on
the record before us, we cannot conclude that defense counsel was ineffective for not raising a
self-defense claim during guilt/innocence stage of trial. We overrule appellant’s sole issue.
We affirm the trial court’s judgment.
/ David Evans/
DAVID EVANS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
140954F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BARBARA KENNEDY WARD, Appellant On Appeal from the 292nd Judicial District
Court, Dallas County, Texas
No. 05-14-00954-CR V. Trial Court Cause No. F-0973060-V
Opinion delivered by Justice Evans, Justices
THE STATE OF TEXAS, Appellee Fillmore and Myers participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 23rd day of June, 2015.
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