Jason Wesley Tate v. State ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00425-CR
JASON WESLEY TATE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2010-398-C1
MEMORANDUM OPINION
Jason Wesley Tate was convicted of evading arrest with a motor vehicle which
was a third degree felony because Tate had a prior conviction for evading. See TEX.
PENAL CODE ANN. § 38.04(b)(2)(A) (West 2011). He was sentenced to nine years in
prison. In his sole issue, Tate argues that his trial counsel was ineffective for not
requesting an instruction on a lesser included offense. We affirm.
To prevail on a claim of ineffective assistance of counsel, an appellant must show
that (1) counsel's representation fell below an objective standard of reasonableness, and
(2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Unless an appellant can prove both
prongs, we must not find counsel's representation to be ineffective. Id. at 687.
There is a strong presumption that counsel's performance fell within the wide
range of reasonably professional assistance. Lopez v. State, No. PD-0481-10, 2011 Tex.
Crim. App. LEXIS 826, *9 (Tex. Crim. App. June 15, 2011); Robertson v. State, 187 S.W.3d
475, 483 (Tex. Crim. App. 2006) (citing Strickland, 466 U.S. at 689). In order for us to find
that counsel was ineffective, counsel's deficiency must be affirmatively demonstrated in
the trial record. Lopez, 2011 Tex. Crim. App. LEXIS 826 at *10; Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999). When such direct evidence is not available, we
will assume that counsel had a strategy if any reasonably sound strategic motivation
can be imagined. Lopez v. State, 2011 Tex. Crim. App. LEXIS 826, at *10. Further, on
direct appeal, the record is usually inadequately developed and cannot adequately
reflect the failings of trial counsel for us to fairly evaluate the merits of such a serious
allegation. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
Tate contends that trial counsel should have requested an instruction on the
offense of fleeing a police officer. See TEX. TRANSP. CODE ANN. § 545.421 (West 2011).
The record is silent as to why counsel did not request such an instruction. Although
Tate contends that fleeing a police officer is a lesser included offense of evading arrest
in a motor vehicle, counsel may have believed that it is not. See Farrakhan v. State, 247
S.W.3d 720, 722-23 (Tex. Crim. App. 2008) (The Court of Criminal Appeals approved of
the Fort Worth Court of Appeals’ decision that the offense of fleeing a police officer was
Tate v. State Page 2
not a lesser-included offense of evading arrest or detention.); see also McKithan v. State,
324 S.W.3d 582, 593 (Tex. Crim. App. 2010).
Furthermore, we are not unaware of the defense strategy when the defendant
believes the State has overcharged the offense. It is a perfectly valid trial strategy for a
defense counsel to forgo a lesser included charge when the defense believes that the
State has charged a higher offense than the State can prove beyond a reasonable doubt.
By this strategy, the defense forgoes the objection or request for a verdict on a lesser
charge so that if the jury does not convict on the charged offense, the defendant is
acquitted. The State forgoes the submission of the lesser charge in the hopes of nudging
the jury towards the conviction on the higher charge by not giving them a lesser charge
on which to find the defendant guilty. The State’s strategy is to not give the jury an
option between the higher charge and a lesser charge but only to have the option of
conviction on the higher charge or acquit. On the other side, the defense, by not
compelling the inclusion of the lesser included offense in the charge, weighs the
alternatives and decides to run the risk that the jury will acquit rather than convict on
the greater offense. That is why it is called a strategy and is not automatically
ineffective assistance of counsel. Thus, even if fleeing a police officer were a lesser
included offense of evading arrest with a motor vehicle, we do not know, from this
record, if counsel was pursuing a trial strategy.
Accordingly, because trial counsel’s alleged deficiency is not affirmatively
demonstrated in the record, Tate has failed to meet his burden under the first prong of
Strickland. His sole issue is overruled.
Tate v. State Page 3
Having overruled his sole issue on appeal, we affirm the trial court’s judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed July 13, 2011
Do not publish
[CR25]
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