John Phillip Hughs v. the State of Texas ( 2024 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00044-CR
___________________________
JOHN PHILLIP HUGHS, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 235th District Court
Cooke County, Texas
Trial Court No. CR22-00242
Before Sudderth, C.J.; Kerr and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
John Phillip Hughs appeals his conviction for possession of one to four grams
of a controlled substance in Penalty Group 1 and sentence of 40 years’ imprisonment.
We will affirm.
I. Introduction
The facts of the offense have no bearing on our analysis. We will summarize
only the pertinent facts.
Appellant Hughs was charged by indictment with possession of one to four
grams of a controlled substance in Penalty Group 1. See Tex. Health & Safety Code
Ann. § 481.115(c). The indictment contained two enhancement paragraphs alleging
that Hughs had twice before been convicted of the offense of possession of a
controlled substance. 1 Hughs pled guilty to the offense and true to both enhancement
paragraphs. After he had entered his pleas and the jury had been excused for the day,
the trial court stated its intent to revoke his bond. However, the trial court changed its
mind when Hughs’s trial counsel threatened to withdraw his guilty plea. The trial
court then warned Hughs:
The worst thing you can do is not show up tomorrow because the trial
will go -- the trial will go on whether you’re here or not. The indictment
has been read. You’ve entered a plea. And it’s not going to look too
good to this jury if you don’t show up.
The enhancements increased the statutory ranges of punishment for Hughs’s
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offense to “life, or . . . any term of not more than 99 years or less than 25 years.” See
Tex. Penal Code Ann. § 12.42(d).
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His trial counsel assured the trial court, “He’ll be here, Your Honor.” The trial court
told the parties to be in court “at 8:30 to start promptly at 9:00.”
Hughs did not appear for trial the following day. He had not been in contact
with his trial counsel that morning, and his trial counsel had not been able to get in
contact with him. Police searched Hughs’s residence and did not find him. The bailiff
called Hughs’s name three times in the hall, see Tex. Code Crim. Proc. Ann. art. 22.02;
Green v. State, 670 S.W.3d 633, 641–42 (Tex. Crim. App. 2023), and received no
answer. The trial court then revoked Hughs’s bond, set a new bond, and announced
that the trial could continue. At Hughs’s trial counsel’s suggestion, 2 the trial court
informed the jury:
Ladies and gentlemen of the jury, you will note the absence of the
Defendant. The Defendant was ordered to return to the Court at 9:00
o’clock this morning. The Defendant has failed to appear. The jury has
been sworn, the Defendant has entered his plea; therefore, the trial will
continue in the absence of the Defendant.
The trial court also told the jury that the hall had been sounded and that Hughs
had failed to answer. Two witnesses testified at the trial, and both sides rested and
closed that same day.
During its closing argument, the State argued to the jury that Hughs “fled . . . .
He has no regard for the law. He has no regard for [the trial court,] and he has no
regard for you.” Later on in its argument, the State repeated that Hughs had “fled”
Up until this point, the jury had not been present in the courtroom that
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morning.
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and that he “showed no regard for anyone other than himself.” The State asked for a
life sentence. The jury assessed Hughs’s punishment at 40 years’ confinement. Hughs
was apprehended within a week and brought back to court the next month.3 The trial
court sentenced Hughs in accordance with the jury’s verdict.
Hughs argues in his sole point on appeal that he was denied effective assistance
of counsel because his trial counsel failed to object to the State’s argument regarding
Hughs’s failure to appear at trial. Because the record is insufficient to support Hughs’s
argument, we affirm.
II. Analysis
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 both that his 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); see Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). We need not
address both parts of the Strickland test if the appellant makes an insufficient showing
of one component. 466 U.S. at 697, 014 S. Ct. at 2069.
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When the trial court asked Hughs when he was re-arrested, Hughs answered,
“Five days later. Five, six days later.”
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Furthermore, the record must affirmatively demonstrate that the ineffective-
assistance claim has merit. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999). Isolated instances of a failure to object to inadmissible argument do not
necessarily render counsel ineffective. Hill v. State, 303 S.W.3d 863, 879 (Tex. App.—
Fort Worth 2009, pet. ref’d). 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, then 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. Direct appeal is usually inadequate for raising an ineffective-assistance-
of-counsel claim because the record generally does not show counsel’s reasons for any
alleged deficient performance. See Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d
at 813–14.
“The instant case presents an example of the inadequacies inherent in
evaluating ineffective assistance claims on direct appeal.” Patterson v. State, 46 S.W.3d
294, 306 (Tex. App.—Fort Worth 2001, no pet.). Hughs did not file a motion for new
trial or otherwise try to make a record and give his trial counsel an opportunity to
explain himself and show whether his failure to object was grounded in sound trial
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strategy. See Hill, 303 S.W.3d at 879 (“Because there was no motion for new trial
addressing these alleged failures, there is only speculation that different conduct by
trial counsel would have been beneficial to Hill.”). The record does not reflect
counsel’s mental processes, including his thoughts at the moment the State made the
argument of which Hughs now complains. “In such situations, the issues are better
presented within the framework of a post-conviction writ of habeas corpus under
article 11.07 of the code of criminal procedure.” Patterson, 46 S.W.3d at 306; see Tex.
Code Crim. Proc. Ann. art. 11.07; see also Hill, 303 S.W.3d at 879.
As an appellate court, we may not “reverse a conviction on ineffective
assistance of counsel grounds when counsel’s actions or omissions may have been
based upon tactical decisions, but the record contains no specific explanation for
counsel’s decisions.” Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002). When
direct evidence of a deficiency in counsel’s performance is not available, “we will
assume that counsel had a strategy if any reasonably sound strategic motivation can be
imagined.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).
In this case, we deem the record inadequate to make a fair evaluation of
Hughs’s claim. See Hill, 303 S.W.3d at 879. Because “the record is silent as to why trial
counsel made the decision that he made,” Hughs has failed to rebut the presumption
that “the actions of counsel were the result of a strategic or reasonable decision . . .”
Id.6
Because, on this record, we conclude that Hughs has failed to establish
deficient representation by a preponderance of the evidence, see Strickland, 466 U.S. at
687, 104 S. Ct. at 2064; Thompson, 9 S.W.3d at 813, we do not reach Strickland’s
prejudice prong, and we overrule his sole point.
III. Conclusion
Having overruled Hughs’s sole point, we affirm the trial court’s judgment.
/s/ Mike Wallach
Mike Wallach
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: April 4, 2024
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