Cynthia D Willis v. the State of Texas ( 2023 )

Opinion issued May 11, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-21-00438-CR
———————————
CYNTHIA D. WILLIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Case No. 1584804
MEMORANDUM OPINION
A jury convicted appellant Cynthia D. Willis of the first-degree felony offense
of murder and sentenced her to fifty years’ imprisonment. See TEX. PENAL CODE
§§ 19.02(b)(1), (2), (c), 12.32(a). Willis raises three issues on appeal. First, she
argues that her trial counsel provided ineffective assistance. Also in her first issue—
which we construe as her second issue—Willis complains that the trial court erred
by not sua sponte instructing the jury on the lesser-included offense of manslaughter.
In her third issue, Willis argues that the trial court erred by admitting evidence of an
extraneous offense. We affirm.
Background
Willis was married to Eric “Mickey” Willis, and they had three children
together. Mickey had other adult children from prior relationships, and Willis also
had a child from a previous relationship. Willis, Mickey, and their three children
lived in a rental house in Spring. Willis’s child from a prior relationship would stay
there from time to time as well.
The last time anyone saw Mickey alive was on March 9, 2018. He recently
had begun having an extramarital affair with a woman he had known since middle
school. On the evening of March 9, Mickey had dinner with his girlfriend, picked up
his son from a friend’s house just before midnight, and returned home and went to
bed.
Early in the morning on March 10, Willis woke up her children, told them to
pack a bag with some clothes, and drove them to Humble. She did not explain why
they were leaving, and Mickey did not go with them. Willis and the children stayed
in a hotel in Humble for a couple of nights before she took the children to her sister’s
2
house in Humble on March 12. Willis stayed at her sister’s house for a few nights,
but the children stayed there for several weeks.
On March 19, one of Mickey’s grown daughters contacted the police and
requested a welfare check for Mickey. Neither Mickey’s children nor his father, who
worked with him, had heard from Mickey since March 9, and he had not shown up
to work since then. Someone also contacted Mickey’s landlord, who had keys to the
Mickey’s rental house. Before officers arrived at Mickey’s house for the welfare
check, Mickey’s father met the landlord at the house. The landlord unlocked the
front door and immediately smelled a noxious odor. Fearing the odor might be gas,
the landlord shut the door and called the gas company. A representative of the gas
company arrived but did not believe the smell was gas.
Shortly thereafter, Deputy Shawanna Mosley-Banks with the Harris County
Sheriff’s Office arrived at Mickey’s house to conduct the welfare check. Upon
entering the residence, she smelled the odor and recognized it as a decaying body.
Mosley-Banks, Mickey’s father, and the landlord entered the house. They first
checked the three secondary bedrooms, finding no one occupying them. Upon
reaching the closed door of the primary bedroom, they heard a loud noise coming
from a television inside the bedroom. When Mosley-Banks opened the door, she saw
a silhouette of a body lying on the bed covered by a blanket. She approached the
bed, pulled back the covers, and discovered Mickey’s body in a state of decay. She
3
ushered Mickey’s father and landlord out of the house and called for additional
officers. The officers determined that there was no sign of forced entry into the
house. The investigation and a later autopsy revealed that Mickey died from a single
gunshot wound to the head. Police never located the firearm.
A Harris County grand jury indicted Willis for murder. See TEX. PENAL CODE
§ 19.02(b)(1), (2). She was arrested in Houston on March 24.
Trial occurred over seven days. Mickey’s children and coworkers testified that
Mickey owned a construction company and had a reputation for a good work ethic.
He was also an attentive father both to his children and to Willis’s child. Mickey’s
absence from work and his failure to call his coworkers and children after March 9
were unusual, eventually prompting the request for the welfare check.
Family and coworkers also testified about problems in Mickey and Willis’s
marriage. One of Mickey’s coworkers testified that he saw Willis stab Mickey with
a knife in 2000 or 2001 outside the couple’s home after the coworker dropped
Mickey off after work. The coworker called the police, but police were unable to
find Mickey or Willis at the house by the time they arrived. Consequently, no
charges were filed against Willis.
Coworkers also testified that they knew Mickey recently began dating another
woman, and text messages Willis sent to Mickey before his death showed that she
was aware of the affair. Mickey had contacted a lawyer about divorcing Willis. He
4
had paid the lawyer a partial retainer and obtained some documents to start the
divorce proceeding, but he had not filed for divorce before his death.
The trial evidence included cell phone records showing that Willis’s and
Mickey’s cell phones travelled together on the morning of March 10, 2018, from the
house to the hotel in Humble, indicating that Willis took Mickey’s cell phone with
her. Although Willis had called or texted Mickey numerous times before that
morning, the records showed that she never contacted him again afterwards. She also
texted a friend on the morning of March 9 discussing problems she was having with
Mickey and telling her friend, “Putting my plan into motion.”
Willis called in sick to work for several days beginning on March 9, and she
never went to work again after March 9. Willis’s sister, however, testified that while
Willis and the children stayed at her house for a few days after March 12, Willis did
not appear to be sick. Text messages Willis sent to her children around this time also
conflicted with her excuse for missing work due to illness. At some point, Willis left
her children at her sister’s house.
After the State rested during the guilt-innocence phase of trial, defense
counsel made a motion for directed verdict, which the trial court denied. After the
defense rested, both sides gave closing arguments. The jury returned a verdict of
guilty.
5
During the punishment phase of trial, Willis testified about Mickey’s
character. She expressly refused to accept the jury’s guilty verdict, denying her
involvement in the murder. She testified that Mickey had “always cheated” on her,
but she nevertheless stayed with him “to keep the family together.” She testified that
Mickey had been a drug dealer, had been in and out of prison, and owed money to
people at various times, including in 2018, for which he had received threats. She
also testified that Mickey had pulled a gun on her in 2003, but the charges were later
dropped. She denied having ever stabbed Mickey.
After both sides rested and presented closing arguments, the jury sentenced
Willis to fifty years’ imprisonment. Willis filed a motion for new trial arguing that
her trial counsel was ineffective. The trial court did not hold a hearing on the motion
for new trial, and it was overruled by operation of law. TEX. R. APP. P. 21.8(c). This
appeal followed.
Ineffective Assistance of Counsel
In her first issue, Willis argues that her trial counsel was ineffective for failing
to investigate, prepare for trial, properly object, raise “crucial issues” such as sudden
passion during trial, request a jury instruction on the lesser-included offense of
manslaughter, and present mitigating evidence at the punishment phase of trial. She
argues that these failures establish her ineffective assistance of counsel claim.
6
A. Standard of Review and Governing Law
The Sixth Amendment of the United States Constitution guarantees that in
“all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance
of Counsel for his defence.” U.S. CONST. amend. VI. The “right to counsel is the
right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668,
686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). To
establish that counsel’s assistance was ineffective, the defendant must show that
(1) counsel’s performance was deficient, and (2) the deficient performance
prejudiced the defense. Id. at 687; see Johnson v. State, 624 S.W.3d 579, 587 (Tex.
Crim. App. 2021) (stating that prejudice prong requires showing reasonable
probability that but for counsel’s unprofessional errors, result of proceeding would
have been different). The defendant bears the burden to prove both prongs by a
preponderance of the evidence, and the “failure to satisfy one prong of the Strickland
test negates a court’s need to consider the other prong.” Williams v. State, 301
S.W.3d 675, 687 (Tex. Crim. App. 2009); Richardson v. State, 606 S.W.3d 375, 381
(Tex. App.—Houston [1st Dist.] 2020, pet. ref’d).
Under the first prong, counsel’s performance is deficient if it falls below an
objective standard of reasonableness. Strickland, 466 U.S. at 687–88; Johnson, 624
S.W.3d at 585. “[J]udicial review of whether counsel’s performance was deficient
7
must be highly deferential to trial counsel and avoid the deleterious effects of
hindsight.” Richardson, 606 S.W.3d at 381.
At the outset, there is a “strong presumption that counsel’s conduct fell within
the wide range of reasonable professional assistance” and that the conduct
constituted sound trial strategy. Johnson, 624 S.W.3d at 586 (quoting Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). To defeat this presumption,
counsel’s ineffectiveness must be affirmatively demonstrated in the appellate record.
Id. “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.
Rather, the record must affirmatively demonstrate trial counsel’s alleged
ineffectiveness.” Id. at 585 (quoting Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim.
App. 2007)). The defendant must demonstrate that no plausible reason exists for the
challenged act or omission. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App.
2002); Richardson, 606 S.W.3d at 382.
Generally, trial counsel should be provided an opportunity to explain
challenged conduct on the record before a court finds that counsel was ineffective.
Johnson, 624 S.W.3d at 586; Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.
App. 2003); see Lopez v. State, 343 S.W.3d 137, 144 (Tex. Crim. App. 2011) (stating
that otherwise silent record may be “supplemented through a hearing on a motion
for new trial” to produce additional information about counsel’s trial strategy). “In
8
the majority of cases, the appellant is unable to meet the first prong of the Strickland
test because the record is underdeveloped and does not adequately reflect the alleged
failings of trial counsel.” Richardson, 606 S.W.3d at 382. A silent record that
provides no explanation for counsel’s actions will not overcome the strong
presumption of reasonable assistance. Johnson, 624 S.W.3d at 586; see Rylander,
101 S.W.3d at 110–11. When the record is undeveloped, counsel will be found
ineffective only if the conduct was “so outrageous that no competent attorney would
have engaged in it.” Johnson, 624 S.W.3d at 586 (quoting Goodspeed v. State, 187
S.W.3d 390, 392 (Tex. Crim. App. 2005)).
B. Analysis
Willis challenges numerous aspects of her counsel’s representation at trial.
She argues that trial counsel did not conduct a pretrial investigation, prepare for trial,
raise proper objections and “crucial issues” such as sudden passion during trial,
request inclusion in the jury charge of an instruction on the lesser-included offense
of manslaughter, or investigate and adduce mitigating evidence during the
punishment phase.
However, the appellate record does not support these arguments. See id. at
585–86. Willis does not argue and the record does not show that her trial counsel
was provided an opportunity to answer these allegations. See id. at 586; Rylander,
101 S.W.3d at 111. Although Willis filed a motion for new trial and raised
9
ineffective assistance of her trial counsel, she did not request a hearing on the motion
to present testimony from her trial counsel explaining his actions. See Lopez, 343
S.W.3d at 144; TEX. R. APP. P. 21.2 (“A motion for new trial is a prerequisite to
presenting a point of error on appeal only when necessary to adduce facts not in the
record.”). Nor does the record otherwise contain any explanation from counsel for
the challenged conduct. Furthermore, Willis does not argue and the record does not
show that the challenged actions were “so outrageous that no competent attorney
would have engaged in” the actions. See Johnson, 624 S.W.3d at 586 (quoting
Goodspeed, 187 S.W.3d at 392).
1. Pretrial Investigation
Willis asserts generally that her trial counsel did not conduct an adequate
pretrial investigation based in part on his failure to call more witnesses at trial. To
assert an issue on appeal, an appellant’s brief must contain “a clear and concise
argument for the contentions made, with appropriate citations to authorities and to
the record.” TEX. R. APP. P. 38.1(i). An appellant waives an issue on appeal if she
does not adequately brief the issue by providing supporting argument and
appropriate citations to authorities and to the record. Id.; Lucio v. State, 351 S.W.3d
878, 896–97 (Tex. Crim. App. 2011); Chaves v. State, 630 S.W.3d 541, 555 (Tex.
App.—Houston [1st Dist.] 2021, no pet.). In arguing that counsel failed to conduct
a pretrial investigation, Willis does not cite to any part of the appellate record or
10
provide substantive analysis showing that counsel was ineffective. See TEX. R. APP.
P. 38.1(i); Lucio, 351 S.W.3d at 896–97; Chaves, 630 S.W.3d at 555. Thus, she has
waived appellate review of this sub-issue.
But even if she had not waived this sub-issue, we would conclude that the
record does not affirmatively demonstrate counsel’s alleged ineffectiveness. See
Johnson, 624 S.W.3d at 585–86. “[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” Ex parte Bowman, 533 S.W.3d 337, 350 (Tex. Crim. App. 2017)
(quoting Strickland, 466 U.S. at 691). “In any ineffectiveness case, a particular
decision not to investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s judgment.” Id.(quoting Wiggins v. Smith, 539 U.S. 510, 521–22 (2003)). “[S]trategic choices made
after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable[.]” Id. (quoting Strickland, 466 U.S. at 690).
The record is silent concerning whether defense counsel conducted a pretrial
investigation. As stated above, counsel was not provided an opportunity to explain
his pretrial investigation or lack thereof. See Johnson, 624 S.W.3d at 586; Rylander,
101 S.W.3d at 111. Because the record is silent concerning counsel’s pretrial
investigation, including his reasons for not contacting or calling specific witnesses
at trial, we cannot conclude that counsel was deficient on this basis. See Johnson,
11
624 S.W.3d at 586; Ex parte Flores, 387 S.W.3d 626, 633 (Tex. Crim. App. 2012)
(stating that defendant must overcome presumption that counsel’s decision not to
call witness is sound trial strategy).
2. Trial Preparation
Willis also argues that defense counsel did not adequately prepare for trial.
She argues that counsel filed a motion to continue trial one day before trial began,
did not make an opening statement, and did not cross-examine several witnesses
against her. She also argues that counsel could not hear the proceedings or was not
attentive, and the court and the witnesses could not hear counsel. Willis’s appellate
brief does not provide any substantive analysis showing that these purported failures
constitute a deficient performance. Willis has therefore waived appellate review of
this sub-issue. See TEX. R. APP. P. 38.1(i); Lucio, 351 S.W.3d at 896–97; Chaves,
630 S.W.3d at 555.
But even if she had not waived this sub-issue, the record does not affirmatively
demonstrate that counsel was unprepared for trial. First, contrary to Willis’s
assertion, counsel filed a motion for continuance three days before voir dire and ten
days before the guilt-innocence phase of trial began. Counsel argued in the motion
and at a hearing on the motion prior to voir dire that a continuance was appropriate
because voir dire was to be conducted at NRG stadium due to the COVID-19
pandemic. Conducting voir dire in that manner would prevent adequate observation
12
of the venire members’ non-verbal communication, such as facial expressions and
body language, and it would be difficult to see and hear each individual venire
person. On their face, counsel’s arguments supporting the motion appear to be a
reasonable strategic decision to seek a better venue for the voir dire proceeding.
Second, counsel’s decision to waive an opening statement is an “inherently
tactical” decision. Brennan v. State, 334 S.W.3d 64, 77 (Tex. App.—Dallas 2009,
no pet.) (quoting Taylor v. State, 947 S.W.2d 698, 704 (Tex. App.—Fort Worth
1997, pet. ref’d)); see Darkins v. State, 430 S.W.3d 559, 570 (Tex. App.—Houston
[14th Dist.] 2014, pet. ref’d) (“Whether to deliver an opening statement is entirely
optional. ‘Few matters during a criminal trial could be more imbued with strategic
implications than the exercise of this option.’”) (citation omitted). Counsel gave
closing arguments at the end of both phases of trial. The record is silent concerning
counsel’s reason for not giving an opening statement.
Third, Willis cites to only one instance in which she asked her counsel to
speak up during his closing argument at the guilt-innocence phase. Our review of
the record indicates that there were other instances over the course of the seven-day
trial in which counsel could not hear or be heard. However, the reasons counsel could
not hear or be heard are not clear on the face of the appellate record. Willis does not
point to any part of the record indicating that the failures to hear or to be heard caused
any issue. We cannot conclude that this constituted an unsound trial strategy.
13
Fourth, Willis challenges defense counsel’s decision not to cross-examine
several witnesses. Willis does not provide substantive analysis of this issue or record
citations supporting her argument. See TEX. R. APP. P. 38.1(i); Lucio, 351 S.W.3d at896–97; Chaves, 630 S.W.3d at 555. She has therefore waived appellate review of
this sub-issue.
In any event, “[c]ross-examination is inherently risky, and a decision not to
cross-examine a witness is often the result of wisdom acquired by experience in the
combat of trial.” Jones v. State, 500 S.W.3d 106, 115 (Tex. App.—Houston [1st
Dist.] 2016, no pet.) (quoting Ex parte McFarland, 163 S.W.3d 743, 756 (Tex. Crim.
App. 2005)). An ineffective cross-examination can bolster a witness’s credibility
and “underscore the very points that are sought to be impeached.” Id. (quoting
Dannhaus v. State, 928 S.W.2d 81, 88 (Tex. App.—Houston [14th Dist.] 1996, pet.
ref’d)). Thus, unless a good reason exists to cross-examine a witness, “it can be more
effective to refrain from cross-examining a damaging witness to minimize the
impact of his testimony.” Id. (quoting Dannhaus, 928 S.W.2d at 88). Counsel’s
decision not to cross-examine certain witnesses can constitute a sound trial strategy,
and the record does not affirmatively demonstrate that this strategy was unsound.
3. Lodging Objections and Raising “Crucial Issues” at Trial
Willis next argues that her counsel lodged only one objection at trial, which
was to the admission of a photograph of Mickey’s deceased body, and counsel for
14
the State had to assist defense counsel in making this objection. Our review of the
record, however, reveals that counsel raised numerous objections during voir dire
and the seven-day trial in this case. Thus, we disagree with Willis’s assertion that
her counsel lodged only one objection and therefore counsel’s performance was
deficient.
a. Extraneous Offense Evidence
Willis also argues that her counsel should have objected to “highly prejudicial
testimony” about a remote, uncharged extraneous offense under Rule of Evidence
403. See TEX. R. EVID. 403 (providing that court may exclude relevant evidence if
its probative value is substantially outweighed by danger of unfair prejudice). During
the guilt-innocence phase of trial, Joseph Ballard testified that he observed Willis
stab Mickey with a knife in 2000 or 2001. Willis’s counsel did not object to this
testimony.
Assuming without deciding that this evidence should have been excluded
under Rule 403 and counsel was deficient in not objecting to it, Willis has not
established prejudice, or a reasonable probability that excluding the evidence would
have resulted in a different outcome. See Strickland, 466 U.S. at 694; Johnson, 624
S.W.3d at 587. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Strickland, 466 U.S. at 694; Johnson, 624 S.W.3d at 587.
If the deficient performance might have affected a guilty verdict, the question is
15
whether there is a reasonable probability that without the errors the factfinder would
have had a reasonable doubt regarding guilt. Johnson, 624 S.W.3d at 587. Appellate
courts examine the totality of the representation and the evidence in evaluating
counsel’s effectiveness. Id.
The evidence at trial showed that Mickey had been having an affair for a few
months prior to his death and that he intended to divorce Willis. Willis’s text
messages revealed that she knew about the affair, and she texted a friend the day
before Mickey’s death that she was “[p]utting [her] plan into motion” when
discussing her marital problems. Very soon after Mickey died, Willis left the house
in Spring with her children, took Mickey’s cell phone, and went to Humble. Neither
she nor the children ever returned to the Spring house. Willis did not call or text
Mickey at all after his death, even though she had called and texted him numerous
times in the days before his death. Willis also called in sick to work for several days
around the time of Mickey’s death, but the evidence showed that she was not actually
ill. Furthermore, when law enforcement discovered Mickey’s body, there were no
signs of forced entry into the house.
Considering this evidence, we cannot conclude that a reasonable probability
exists that the jury would have had a reasonable doubt regarding Willis’s guilt if the
evidence of the extraneous offense had been excluded at trial. See id. Therefore,
Willis has not established the second prong of an ineffective assistance claim on this
16
sub-issue. See Strickland, 466 U.S. at 687, 694; see also Williams, 301 S.W.3d at
687 (stating that failure to satisfy one Strickland prong negates need to consider
other prong).
b. Sudden Passion Instruction
Willis also argues that her counsel failed to raise sudden passion at the
punishment phase of trial. Willis does not point to any trial evidence supporting
sudden passion or provide substantive analysis showing that the evidence entitled
her to a jury instruction on sudden passion. See TEX. R. APP. P. 38.1(i); Lucio, 351
S.W.3d at 896–97; Chaves, 630 S.W.3d at 555. Willis has therefore waived appellate
review of this sub-issue.
Nevertheless, the record before us does not affirmatively demonstrate that
counsel was ineffective for failing to raise sudden passion. Our review of the record
does not reveal any evidence tending to show that Willis “caused [Mickey’s] death
under the immediate influence of sudden passion arising from an adequate cause.”
See TEX. PENAL CODE § 19.02(d) (defining sudden passion). She did not admit to
shooting Mickey, but rather she denied doing so when she testified during the
punishment phase of trial. It is possible that evidence of sudden passion existed and
that counsel was deficient in not investigating or presenting such evidence at trial.
See id. (stating that defendant has burden to prove sudden passion by preponderance
of evidence and, if proved, offense is reduced to second-degree felony). But on the
17
silent record before us, we cannot conclude that counsel was deficient in not raising
sudden passion in this case.
4. Instruction on Lesser-Included Offense of Manslaughter
Willis also argues generally that counsel was ineffective for failing to object
to the omission of a jury instruction on the lesser-included offense of manslaughter.1
However, her argument focuses only on the prejudice prong of an ineffective
assistance claim. See Strickland, 466 U.S. at 687. Willis offers no argument or
analysis showing that she was entitled to the instruction or that counsel’s
performance was deficient. See TEX. R. APP. P. 38.1(i); Lucio, 351 S.W.3d at 896–
97; Ex parte Nailor, 149 S.W.3d 125, 133–34 (Tex. Crim. App. 2004) (stating that
counsel does not perform deficiently by not requesting jury instruction to which
defendant is not entitled); Shanklin v. State, 190 S.W.3d 154, 159 (Tex. App.—
Houston [1st Dist.] 2005, pet. dism’d) (stating that defendant must establish
entitlement to jury instruction on lesser-included offense to establish counsel’s
deficient performance in failing to request instruction). Moreover, the record is silent
concerning counsel’s reasons for not requesting a manslaughter instruction. See
1
A person commits manslaughter if she recklessly causes the death of an individual.
TEX. PENAL CODE § 19.04(a). Neither party disputes that manslaughter is a lesser-
included offense of murder. See Gilbert v. State, 196 S.W.3d 163, 165 (Tex. App.—
Houston [1st Dist.] 2005, pet. ref’d).
18
Johnson, 624 S.W.3d at 585–86. Therefore, we cannot conclude on the record before
us that counsel was ineffective for failing to request a manslaughter instruction.
5. Mitigating Evidence
Willis also generally argues that her counsel was ineffective for failing to
investigate potential mitigating evidence or present any mitigating evidence during
the punishment phase of trial.
Defense counsel’s “failure to uncover and present voluminous mitigating
evidence at sentencing is not a reasonable tactical decision where counsel has not
‘fulfilled their obligation to conduct a thorough investigation of the defendant’s
background.’” Ex parte Garza, 620 S.W.3d 801, 824 (Tex. Crim. App. 2021)
(quoting Wiggins, 539 U.S. at 522). “[C]ounsel can only make a reasonable decision
to forgo presentation of mitigating evidence after evaluating available testimony and
determining it would not be helpful.” Lair v. State, 265 S.W.3d 580, 595 (Tex.
App.—Houston [1st Dist.] 2008, pet. ref’d). In assessing the reasonableness of an
attorney’s investigation, a court “must consider not only the quantum of evidence
already known to counsel, but also whether the known evidence would lead a
reasonable attorney to investigate further.” Ex parte Garza, 620 S.W.3d at 824
(quoting Wiggins, 539 U.S. at 527). “When trial counsel does not conduct a complete
investigation, his conduct is ‘reasonable only to the extent that reasonable
19
professional judgments support the limitations on investigation.’” Id. (quoting
Wiggins, 539 U.S. at 533).
Willis relies only upon her motion for new trial to support her argument.
However, a motion for new trial is not self-proving and does not constitute evidence.
Lamb v. State, 680 S.W.2d 11, 13 (Tex. Crim. App. 1984); Burrus v. State, 266
S.W.3d 107, 112 (Tex. App.—Fort Worth 2008, no pet.). Willis attached four
affidavits to the motion for new trial, but these affidavits do not constitute evidence
until they are offered and admitted into evidence at a hearing on the motion for new
trial. Lamb, 680 S.W.2d at 13; Burrus, 266 S.W.3d at 112. Willis did not request a
hearing on her motion for new trial, and the motion was denied by operation of law
without a hearing. Thus, neither the motion nor its supporting affidavits are
competent evidence.
Because the record in this direct appeal does not affirmatively demonstrate
that defense counsel performed deficiently, Willis has not met her burden to defeat
the strong presumption that counsel’s trial conduct fell within the wide range of
reasonable professional assistance.2 See Johnson, 624 S.W.3d at 585–86; see also
Williams, 301 S.W.3d at 687 (stating that failure to satisfy one Strickland prong
2
Claims of ineffective assistance of counsel rejected on direct appeal may be
resubmitted in an application for a writ of habeas corpus. Johnson v. State, 624
S.W.3d 579, 588 n.1 (Tex. Crim. App. 2021); Lopez v. State, 343 S.W.3d 137, 143
(Tex. Crim. App. 2011).
20
negates court’s need to consider other prong). We overrule Willis’s first issue to the
extent she argues that her trial counsel provided ineffective assistance of counsel.
Instruction on Lesser-Included Offense of Manslaughter
Within her first issue, Willis raises a separate issue which we construe as her
second issue: whether the trial court erred by failing to sua sponte include a jury
instruction on the lesser-included offense of manslaughter. The State contends that
Willis did not preserve error on this issue by objecting to the omission of a
manslaughter instruction in the trial court.3
In each felony criminal case, the trial court must submit to the jury “a written
charge distinctly setting forth the law applicable to the case.” TEX. CODE CRIM.
PROC. art. 36.14; see Williams v. State, 662 S.W.3d 452, 460 (Tex. Crim. App.
2021). A jury charge should include “all of the law applicable to the criminal offense
3
The State also argues that Cynthia’s sub-issue concerning omission of a jury
instruction on the lesser-included offense of manslaughter is impermissibly
multifarious because it argues both that counsel was ineffective for not requesting
the instruction and that the trial court erred by not sua sponte including such an
instruction. A point of error is multifarious when it is based on more than one legal
theory. Davis v. State, 329 S.W.3d 798, 820 (Tex. Crim. App. 2010). By combining
more than one contention in a single point of error, an appellant risks rejection of
the entire point of error on the ground that nothing will be presented for review.
Foster v. State, 101 S.W.3d 490, 499 (Tex. App.—Houston [1st Dist.] 2002, no
pet.). However, an appellate court may address a multifarious point that is
sufficiently developed in the brief. Id.; see Davis, 329 S.W.3d at 820 (deciding to
review multifarious point of error “in the interest of justice”). Although we agree
with the State that the sub-issue is multifarious, Cynthia sufficiently developed both
points such that the Court can identify the points she has made. In the interest of
justice, we will consider Cynthia’s multifarious point.
21
that is set out in the indictment or information” as well as other general
admonishments. Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018)
(quoting Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)). “These
matters are always ‘law applicable to the case[,]’” and a trial court must instruct the
jury on these issues sua sponte without prompting from counsel because “the trial
judge is ultimately responsible for the accuracy of the jury charge and accompanying
instructions.” Id. (quoting Delgado, 235 S.W.3d at 249).
Generally, a defendant may raise a claim of jury-charge error on appeal
regardless of whether the defendant preserved the alleged error in the trial court. See
Williams, 662 S.W.3d at 460–61; Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1984) (op. on reh’g); State v. Sciacca, 518 S.W.3d 460, 464 (Tex.
App.—Houston [1st Dist.] 2016, no pet.). If the defendant properly objected, the
reviewing court determines whether the error caused some harm. Williams, 662
S.W.3d at 460. If the defendant did not object, the reviewing court determines
whether the error caused egregious harm. Id. at 460–61.
When, however, the defendant complains about the omission of a defensive
instruction in the jury charge, this framework with its two standards of review does
not apply. Id. at 461. Rather, “unrequested defensive instructions are still subject to
ordinary rules of procedural default.” Id.; see Posey v. State, 966 S.W.2d 57, 62
(Tex. Crim. App. 1998) (holding that defensive issue is not law applicable to case
22
unless defendant timely requests inclusion or objects to omission in jury charge).
Rule of Appellate Procedure 33.1 provides that, as a prerequisite to presenting a
complaint for appellate review, the record must show that the complaint was made
by a timely request, objection, or motion stating the grounds of the complaint with
sufficient specificity to make the trial court aware of the complaint and the trial court
ruled or refused to rule on the complaint. TEX. R. APP. P. 33.1(a). Requiring a timely,
specific objection serves two purposes: (1) it notifies the trial court of the objection
and affords an opportunity for a ruling; and (2) it affords opposing counsel an
opportunity to respond to the complaint. Williams, 662 S.W.3d at 460. A defendant
must preserve error in a defensive instruction before he may seek appellate review
of the error. Id. at 461.
The Court of Criminal Appeals has held that rules governing preservation of
error apply to the omission of an unrequested lesser-included offense instruction
from a jury charge. Id.; Mendez, 545 S.W.3d at 552; Tolbert v. State, 306 S.W.3d
776, 781 (Tex. Crim. App. 2010); Posey, 966 S.W.2d at 61–62. Like other defensive
instructions, lesser-included offense instructions “frequently depend upon trial
strategy and tactics,” and therefore lesser-included offenses are not considered “the
law applicable to the case.” Williams, 662 S.W.3d at 461 (quoting Tolbert, 306
S.W.3d at 780–81); see Mendez, 545 S.W.3d at 552. Consequently, a criminal
defendant must request a lesser-included offense instruction and object to the
23
omission of such an instruction in writing presented to the trial court before the
charge is read to the jury. TEX. CODE CRIM. PROC. art. 36.14; Williams,
662 S.W.3d at 461; Posey, 966 S.W.2d at 61–62. Absent a request, a trial court is
not required to instruct the jury on lesser-included offenses. Williams, 662 S.W.3d at
461; Tolbert, 306 S.W.3d at 780–81; Posey, 966 S.W.2d at 62. And absent an
objection to the omission of a lesser-included offense instruction, the defendant has
not preserved error and may not present the complaint for review on appeal.
Williams, 662 S.W.3d at 461.
On appeal, Willis acknowledges that she did not object to the omission of a
jury instruction on the lesser-included offense of manslaughter. See TEX. R. APP. P.
33.1(a). She nevertheless relies on the dual standard of review generally applicable
to jury charge error, under which reviewing courts will reverse unpreserved jury
charge error upon a showing of egregious harm. See Williams, 662 S.W.3d at 460–
61; Almanza, 686 S.W.2d at 171. However, this dual standard does not apply when,
as here, the complaint concerns the allegedly erroneous omission of a defensive
instruction, such as an instruction on a lesser-included offense. See Williams,
662 S.W.3d at 461. Because Willis did not object to the omission of a jury
instruction concerning the lesser-included offense of manslaughter, we conclude that
she did not preserve this complaint for appellate review. See id.; Tolbert, 306 S.W.3d
at 781 (holding that, in capital murder case, “trial court had no duty to sua sponte
24
instruct the jury on the lesser-included offense of murder and that a jury instruction
on this lesser-included offense was not ‘applicable to the case’ absent a request by
the defense for its inclusion in the jury charge”). We overrule Willis’s second issue.
Admissibility of Extraneous Offense Evidence
In her third issue, Willis argues that the trial court erred by admitting evidence
that she had stabbed Mickey twenty years earlier because it was too remote in time
to be admissible and it caused undue prejudice. The State contends that Willis failed
to preserve this issue for appellate review. We agree with the State.
As stated above, to preserve error for appellate review, the record must show
that the complaint was made to the trial court by a timely request, objection, or
motion with sufficient specificity to apprise the trial court of the complaint. TEX. R.
APP. P. 33.1(a)(1)(A). If a defendant does not timely object to the admission of
evidence, she does not preserve error in the admission of that evidence for appellate
review. Saldano v. State, 70 S.W.3d 873, 889–90 (Tex. Crim. App. 2002); Zill v.
State, 355 S.W.3d 778, 789 (Tex. App.—Houston [1st Dist.] 2011, no pet.);
Thompson v. State, 4 S.W.3d 884, 886–87 (Tex. App.—Houston [1st Dist.] 1999,
pet. ref’d) (stating that defendant must object to preserve error in admission of
extraneous offense evidence).
At trial, the State called Mickey’s longtime friend to testify. Anticipating the
witness’s testimony, the State asked to approach the bench and, outside the presence
25
of the jury, informed the court that the State intended to elicit testimony about a
stabbing incident that had been disclosed to defense counsel. Defense counsel did
not object to the testimony. The friend then testified that he witnessed Willis stab
Mickey with a knife outside the couple’s home in 2000 or 2001.
Willis did not object to this testimony. Accordingly, we hold that she did not
preserve error on the admissibility of this extraneous offense evidence. See TEX. R.
APP. P. 33.1(a); Saldano, 70 S.W.3d at 889–90; Zill, 355 S.W.3d at 789; Thompson,
4 S.W.3d at 886–87. We overrule Willis’s third issue.
Conclusion
We affirm the judgment of conviction by the jury.
April L. Farris
Justice
Panel consists of Justices Hightower, Rivas-Molloy, and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).
26