Michael Shane Powell v. the State of Texas ( 2024 )

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-23-00011-CR
MICHAEL SHANE POWELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 102nd District Court
Red River County, Texas
Trial Court No. CR03349
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice van Cleef
MEMORANDUM OPINION
A Red River County jury convicted Michael Shane Powell of aggravated assault with a
deadly weapon and sentenced him to twenty years’ imprisonment. See TEX. PENAL CODE ANN.
§ 22.02 (Supp.). On appeal, Powell argues that (1) the evidence was insufficient to support the
jury’s verdict of guilt, (2) the trial court should have conducted an inquiry into his competence to
stand trial, (3) his counsel rendered ineffective assistance, and (4) the record does not support all
the court costs assessed against him.
We find that sufficient evidence supports the jury’s finding of guilt and that an informal
inquiry into Powell’s competence was not required. We also find that Powell cannot prove his
allegations of ineffective assistance on this silent record and that all the costs assessed against
Powell were proper. Accordingly, we affirm the trial court’s judgment.
I. Factual and Procedural Background
The State alleged that, in December 2021, Powell intentionally or knowingly threatened
Kristopher Posey with imminent bodily injury by shooting a firearm at or in his direction.
Powell pled not guilty to that allegation. The evidence at trial established that the shooting
happened just outside of Powell’s home. Powell’s neighbors, including Posey, William Gilbert,
Dustin Gilbert, and Casey Townes, testified against him.
William’s and Posey’s testimony established that Powell was known to yell at his
neighbors for no reason. William said that, when William’s family would enjoy their yard,
Powell would “act[] . . . just crazy” and would even yell at children. William explained that
Powell would “come out and be yelling, telling [them] to get back in [their] house and stuff like
2
that and cussing.” When asked about what Powell would yell, William said he would “just be
screaming at [them].” He continued, “I mean, just random things. Why? Who knows. . . .
[H]e’ll just come out screaming and everybody will be like what’s wrong and we’re like we
don’t know.” Posey also testified that he was “worried about [his] kids because there w[ere]
some days [Powell] would walk outside and be hollering at [them] for no reason.” According to
William, others had told him that Powell had fired weapons in his yard before the December
2021 incident.
William’s son, Dustin, said the incident occurred after another neighbor had been
recently robbed. According to Dustin, Posey approached him to see if they should investigate a
suspicious vehicle parked nearby in hopes of obtaining any information about the robbery.
Dustin, Posey, William, and Dustin’s younger brother approached the car. As they neared the
vehicle, Dustin testified that Powell came out of his home with a long-barrel gun and began
screaming and cursing at the group. Dustin testified that, from twenty feet away, Powell fired
the gun “a[t] [their] general area” and “hit the tree where [they] were standing,” terrifying the
group. Dustin clarified that the tree was three or four feet away from him.
According to William and Posey, Dustin notified them that Powell had a gun. William
said that, by the time he “turned to look[, the gun] went off[,]” and the shot “cracked the tree”
“[t]o the left of [him] where [he] was standing.” Posey testified that Dustin said Powell had a
gun “pointed at [them]” and that “it wasn’t a few seconds later [they] hear[d] a gunshot” that
“[h]it the tree behind [them].”
3
Dustin and William both said that the group retreated towards a neighbor’s house, but
Powell, who had run back into his house after firing the long-barrel gun, came back outside with
a pistol, waived it at the group, and told them they would “sign . . . death warrants” if they called
the police. Posey also testified that Powell returned from his house after retrieving a pistol that
he waived at them, which prompted the group to run to Posey’s house. Townes, who heard the
gunfire from inside of her home, called 9-1-1. She then called Posey, who told her that Powell
“shot at [them].”
James Melton, an officer from the Red River County Sheriff’s Office, testified that he
was dispatched to Powell’s residence. Melton, Dustin, William, and Posey all testified that
Powell threw a beer bottle at Melton, which shattered on the road. Melton said that Powell, who
was holding a gun, barricaded himself inside of his home and refused to come out. According to
Melton, officers tried to communicate with Powell for about four hours and waited for Powell’s
mother, Kay Lacy, to travel from Little Rock, Arkansas, to assist them.
Lacy testified that Powell was an electrician until he suffered, six years earlier, a
traumatic brain injury that required medication administered under his doctor’s care. Lacy
explained that Powell was unemployed at the time of trial because his “mind [would not] let
him” work. She also testified that Powell heard voices and clarified that Powell was never a
Marine, although he believed himself to be one. Lacy testified that “nine times out of ten,”
people could not “tell that [Powell] ha[d] a problem except if he start[ed] thinking about child
molesters and stuff like that he [got] mad and when he start[ed] yelling [it was] not at the
person.” Lacy said Powell “had good cognitive recognition,” paid his bills, and knew right from
4
wrong, “[e]xcept if [he was] in a manic state,” which meant “you [could not] talk to him or he
[did not] know [what was being said].” Lacy knew that Powell’s neighbors did not like him, but
she could only check on Powell by phone because she had to stay at home with her disabled
husband.
Lacy testified that she believed Powell was in a manic state during the incident. A
recording of the incident showed that Lacy was on a bullhorn in front of Powell’s home in an
effort to get him out of the house. Samantha Sellers, an investigator with the Red River County
Sheriff’s Department who was at the scene, said that Lacy “made mention that a good Marine
would come on out,” and the recording of the incident confirmed that. On the recording, Sellers
indicated that Powell was on medication and opined that he might be hard to wake as a result.
The recording also showed that Powell eventually opened the door, waved, but became
argumentative after doing so. Powell ranted, raved, cussed, and told officers that he was a
Marine and that they needed to contact the Department of Defense. Sellers testified that officers
had to physically restrain and tase Powell before handcuffing him. Officers confiscated a
shotgun and handgun from Powell.
During the State’s closing argument on guilt/innocence, the State said, “[Powell has] a
brain injury supposedly and [Lacy] says, well, he goes in these manic states and he’s fine when
he’s not, but can we afford to have him out there on the times when he goes into a manic state.”
The State argued that Powell knew right from wrong. In response, Powell’s counsel argued,
“We see a man with a mental illness and he’s having a manic episode. . . . He doesn’t know
what’s going on and he acts the way he does.”
5
After hearing the evidence and arguments of counsel, the jury found Powell guilty of
aggravated assault with a deadly weapon.
At punishment, the State introduced Powell’s prior offenses, including a 1995 driving
while intoxicated (DWI) conviction, a 2005 DWI conviction, a 2005 violation of implied consent
to a breath test conviction, and a 2018 disorderly conduct conviction. Powell presented no
evidence at punishment.
During the State’s punishment closing argument, the State argued that Powell was
dangerous because “apparently he doesn’t take his medication . . . . And we have a place where
we can keep him and they’ll send him to diagnostics down at [the] [Texas Department of
Corrections] and they’ll put him in a place to where he can be medicated and controlled.” The
State continued, “We see it all the time on TV. People go into schools shooting up schools or
people going to a mall and shooting up a mall. Those folks all have problems. Well, this guy
has problems, you’ve seen it, he has already started it.” The State continued, “[H]eaven help us
if a kid next week gets shot when [Powell] goes to Wal-Mart and buys another shotgun or
wherever you can go, Academy, and get a shotgun and he ends up shooting somebody when he
goes into one of his manic states.” In his punishment closing, Powell’s counsel discussed
Powell’s “mental illness” and said, “Powell . . . needs help, he hears voices.” Defense counsel
urged the jury to place Powell on community supervision. In rebuttal, the State urged the jury to
assess the maximum twenty-year sentence, adding, “He can get a knife. He can slit his mother’s
throat.” Agreeing with the State, the jury assessed the maximum twenty-year sentence.
6
II. The Evidence Was Legally Sufficient to Support the Jury’s Verdict of Guilt
In his first point of error, Powell argues that the evidence was legally insufficient to
support the jury’s finding of guilt. We disagree.
A. Standard of Review
“In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the trial court’s judgment to determine whether any rational jury could have found the essential
elements of the offense beyond a reasonable doubt.” Williamson v. State, 589 S.W.3d 292, 297
(Tex. App.—Texarkana 2019, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hartsfield v.
State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d)). “Our rigorous [legal
sufficiency] review focuses on the quality of the evidence presented.” Id. (citing Brooks, 323
S.W.3d at 917–18 (Cochran, J., concurring)). “We examine legal sufficiency under the direction
of the Brooks opinion, while giving deference to the responsibility of the jury ‘to fairly resolve
conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts.’” Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)
(citing Jackson, 443 U.S. at 318–19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007))).
“Legal sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge.” Id. at 298 (citing Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997)). “The ‘hypothetically correct’ jury charge is ‘one that accurately sets
out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of
7
proof or unnecessarily restrict the State’s theories of liability, and adequately describes the
particular offense for which the defendant was tried.’” Id. (quoting Malik, 953 S.W.2d at 240).
Here, the State alleged that Powell intentionally or knowingly threatened Posey with
imminent bodily injury by shooting a firearm at or in his direction. In his brief, Powell says he
“does not challenge the evidence that he was the actor and that he discharged a weapon.”
Instead, he complains that the weapon was not discharged “‘at or in the direction of’ Kristopher
Posey because the evidence on this element was very general in nature.”
B. Analysis
We find that there is ample evidence to show that Powell discharged a firearm in Posey’s
direction. Dustin testified that Powell fired a bullet that hit the tree close to where he, William,
and Posey were standing. When asked if Powell shot a firearm in his direction, Posey answered,
“Yes.” He added that he felt threatened with imminent bodily injury and that the shot “[h]it the
tree behind [them].” According to Townes, Posey told her over the phone that Powell “shot at
[them].” As the fact-finder, the jury was entitled to believe that testimony.
When viewed in the light most favorable to the jury’s verdict, the evidence was sufficient
to support the jury’s finding, beyond a reasonable doubt, that Powell discharged a weapon in
Posey’s direction. As a result, we overrule Powell’s legal sufficiency challenge.
III. A Sua Sponte Inquiry Into Powell’s Competence Was Not Required
In his second point of error, Powell argues that the trial court should have conducted an
informal inquiry into his competence in light of the evidence of his mental illness. We conclude
8
that, on this record, the trial court did not abuse its discretion by failing to conduct an informal
inquiry into Powell’s competence to stand trial.
A. Standard of Review
“We review a trial court’s failure to conduct an informal inquiry into appellant’s
competency for an abuse of discretion.” Lindsey v. State, 544 S.W.3d 14, 21 (Tex. App.—
Houston [14th Dist.] 2018, pet. ref’d). Under this standard, we do “not substitute [our] judgment
for that of the trial court, but rather determine[] whether the trial court’s decision was arbitrary or
unreasonable.” Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009), superseded by
statute on other grounds, as recognized in Turner v. State, 422 S.W.3d 676, 692 (Tex. Crim.
App. 2013).
B. Relevant Caselaw
“As a matter of constitutional due process, a criminal defendant who is incompetent may
not stand trial.” Clark v. State, 592 S.W.3d 919, 924 (Tex. App.—Texarkana 2019, pet. ref’d)
(quoting Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018)). “Although a defendant
is presumed competent and bears the ultimate burden of proving incompetence to stand trial,” the
Texas Code of Criminal Procedure “does not allow a trial court to stand by and wait for a
defendant to raise the issue.” Id. at 925. “Rather, in order to ensure that no incompetent
defendant is put to trial, Article 46B [of the Texas Code of Criminal Procedure] places certain
responsibilities on the trial court to inquire into the matter independently and force the parties to
litigate the issue, if necessary.” Id. (citing TEX. CODE CRIM. PROC. ANN. arts. 46B.003(b),
46B.004(a), 46B.005(a)).
9
“Texas’ competency statutes allow competency to be raised, by either party or the judge,
at any time before sentence is pronounced.” Morris v. State, 301 S.W.3d 281, 290 (Tex. Crim.
App. 2009). “Procedurally, a trial court employs two steps for making competency
determinations before it may ultimately conclude that a defendant is incompetent to stand trial.”
Boyett v. State, 545 S.W.3d at 556, 563 (Tex. Crim. App. 2018). “The first step is an informal
inquiry; the second step is a formal competency trial.” Id.Article 46B.004(b), describes how the informal inquiry can be triggered. It states, “If
evidence suggesting the defendant may be incompetent to stand trial comes to the attention of the
court, the court on its own motion shall suggest that the defendant may be incompetent to stand
trial.” TEX. CODE CRIM. PROC. ANN. art. 46B.004(b). “On suggestion that the defendant may be
incompetent to stand trial, the court shall determine by informal inquiry whether there is some
evidence from any source that would support a finding that the defendant may be incompetent to
stand trial.” TEX. CODE CRIM. PROC. ANN. art. 46B.004(c).
Because “[a]n informal inquiry is called for upon a ‘suggestion’ from any credible source
that the defendant may be incompetent,” Boyett, 545 S.W.3d at 563 (quoting TEX. CODE CRIM.
PROC. ANN. art. 46B.004(a), (c), (c-1)), “[t]he amount of information necessary to trigger an
‘informal inquiry’ is low,” Clark, 592 S.W.3d at 925 (quoting TEX. CODE CRIM. PROC. ANN. art.
46B.004(a), (c), (c-1)). “Evidence suggesting the need for an informal inquiry may be based on
observations made in relation to one or more of the factors described by Article 46B.024 or on
any other indication that the defendant is incompetent within the meaning of Article 46B.003.”
TEX. CODE CRIM. PROC. ANN. art. 46B.004(c-1). “A further evidentiary showing is not required
10
to initiate the inquiry, and the court is not required to have a bona fide doubt about the
competency of the defendant.”1 Id.
Under Article 46B.024,
considerations include information regarding whether the defendant has a mental
illness or an intellectual disability, “whether the identified condition has lasted or
is expected to last continuously for at least one year,” whether medication is
necessary to maintain the defendant’s competency, and “the degree of impairment
resulting from the mental illness or intellectual disability . . . and the specific
impact on the defendant’s capacity to engage with counsel in a reasonable and
rational manner.”
Laflash v. State, 614 S.W.3d 427, 432 (Tex. App.—Houston [1st Dist.] 2020, order) (quoting
TEX. CODE CRIM. PROC. ANN. art. 46B.024(2)–(5)); see Lampkin v. State, 470 S.W.3d 876, 908
(Tex. App.—Texarkana 2015, pet. ref’d).2 Under Article 46B.003, a defendant is incompetent to
stand trial if he does not possess “sufficient present ability to consult with the person’s lawyer
with a reasonable degree of rational understanding.” TEX. CODE CRIM. PROC. ANN. art.
46B.003(a)(1). Evidence of “recent severe mental illness, at least moderate retardation, or truly
bizarre acts by the defendant” are sufficient to trigger a competency inquiry. McDaniel v. State,
98 S.W.3d 704, 710 (Tex. Crim. App. 2003) (quoting Alcott v. State, 51 S.W.3d 596, 602 (Tex.
Crim. App. 2001) (Price, J., concurring)).
1
During the informal inquiry, “a trial court must consider only evidence of incompetency, and it must not weigh
evidence of competency against the evidence of incompetency.” Boyett, 545 S.W.3d at 564.
2
The term “‘[m]ental illness’ means an illness, disease, or condition, other than epilepsy, dementia, substance abuse,
or intellectual disability, that grossly impairs: (A) a person’s thought, perception of reality, emotional process, or
judgment; or (B) behavior as demonstrated by recent disturbed behavior.” TEX. CODE CRIM. PROC. ANN. art.
46B.001(12) (Supp.).
11
C. Analysis
Here, there was no evidence of moderate retardation or bizarre acts by Powell in the trial
court’s presence. As for evidence of mental illness, there was evidence that Powell suffered
from a traumatic brain injury, had been under a doctor’s care for six years preceding trial, and
required medication for mental illness. Powell’s neighbors testified about his “crazy” behavior,
including throwing a beer bottle at a police officer, and Lacy’s testimony established that Powell,
a former electrician, was unable to work after his head injury, heard voices, and could become
manic. The evidence also showed that Powell falsely claimed that he was a Marine. Even the
State’s closing arguments during punishment referred to Powell’s mental illness. Yet, nothing
suggested that Powell’s mental illness was severe or that Powell was experiencing any effects
that would impact his competency.
As for whether Powell was able to consult with counsel with a rational degree of
understanding, Powell points to the following portion of the transcript to suggest the possibility
of confusion as to whether he would testify:
[POWELL’S COUSEL]: Additionally, Your Honor, the defense --
Mr. Powell has been advised of his rights to testify and all the pitfalls that go with
it along with the good and he has decided at this time he does not wish to testify
in the guilt/innocence phase of his trial. Is that correct, Mr. Powell?
MR. POWELL: Do what now?
[POWELL’S COUSEL]: You don’t want to testify at this time?
MR. POWELL: If somebody has questions they want to ask me,
I’ll be more than happy to testify. I guess no.
12
[POWELL’S COUSEL]: My client does not wish to testify at this
time, Your Honor . . . .
We disagree with Powell’s assertion that this portion of the transcript was sufficient to
show confusion or inability to communicate with his counsel. Instead, it showed that Powell
knew that testifying would require him to answer questions and that he ultimately agreed with
his counsel’s suggestion—apparent in counsel’s questions to Powell—to refrain from providing
testimony. We also note that there were four pretrial hearings and voir dire prior to the exchange
reported above, and the record does not indicate that Powell exhibited confusion or inappropriate
behavior during those proceedings.
In Turner, the Texas Court of Criminal Appeals noted that “[t]he fact that a defendant is
mentally ill does not by itself mean he is incompetent,” and we find that the record in Powell’s
case shows nothing more than that he was mentally ill at some time. Turner, 442 S.W.3d at 691.
It is only “when a defendant’s mental illness operates in such a way as to prevent him from
rationally understanding the proceedings against him or engaging rationally with counsel in the
pursuit of his own best interests” that “he cannot be made to stand trial consistent with due
process.” Id. To suggest incompetency, the record would need to show that the mental illness
prevented appellant from rationally understanding the proceedings against him or engaging with
counsel to pursue his best interests. Lindsey, 544 S.W.3d at 25 (citing Turner, 442 S.W.3d at
691); see also McDaniel v. State, 98 S.W.3d 704, 712 (Tex. Crim. App. 2003) (holding that
evidence the defendant suffered bipolar disorder did not obligate trial court to make informal
inquiry into defendant’s competency). Simply put, nothing showed that Powell’s mental illness
13
prevented his rational understanding of the proceedings or that he was not able to meaningfully
engage with his counsel. As a result, we do not find that Powell met the threshold required to
trigger an informal inquiry.
We conclude that, based on the record before us, the trial court did not abuse its
discretion by failing to conduct an informal inquiry. As a result, we overrule Powell’s second
point of error.
IV. The Silent Record Does Not Support Powell’s Claim of Ineffective Assistance
In his third point of error, Powell argues that his counsel rendered ineffective assistance
because he should have (a) introduced mitigating evidence during punishment, “(b) objected to
the State’s closing arguments, (c) raised the issue of Powell’s competence in a motion for new
trial, and (d) filed a suggestion of incompetence.”
A. Standard of Review
The Sixth Amendment to the United States Constitution guarantees an accused the right
to reasonably effective assistance of counsel in criminal prosecutions. U.S. CONST. amend. VI;
Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). We “look to the totality of the
representation” in evaluating the effectiveness of counsel. Auld v. State, 652 S.W.3d 95, 113
(Tex. App.—Texarkana 2022, no pet.). As many cases have noted, the right to counsel does not
mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App.
2006). “[T]o prevail on a claim of ineffective assistance of counsel, [the defendant] must satisfy
the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, [687–88] . . . (1984).”
Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009) (orig. proceeding). A failure to
14
make a showing under either prong of the Strickland test defeats a claim for ineffective
assistance. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003).
To prove ineffective assistance of his counsel, Powell must show (1) that trial counsel’s
representation fell below an objective standard of reasonableness, based on prevailing
professional norms, and (2) that there is a reasonable probability that the result of the proceeding
would have been different but for trial counsel’s deficient performance. See Strickland v.
Washington, 466 U.S. 468, 687–95 (1984); Hernandez v. State, 726 S.W.2d 53, 55–57 (Tex.
Crim. App. 1986). A “reasonable probability” means a “probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694.
B. The Silent Record Prevents Powell from Meeting the First Strickland Prong
Under the first Strickland prong, “the defendant must prove, by a preponderance of the
evidence, that there is . . . no plausible professional reason for a specific act or omission.” Bone
v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Accordingly, judicial scrutiny of
counsel’s performance must be highly deferential, and “the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered sound
trial strategy.’” Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101
(1955)). We apply a strong presumption that trial counsel was competent and presume that
counsel’s actions and decisions were reasonably professional and motivated by sound trial
strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Also, when an
appellate record is silent on why trial counsel failed to take certain actions, “the appellant has
failed to rebut the presumption that trial counsel’s decision was in some way—be it conceivable
15
or not—reasonable.” Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); see
Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).
1. Failing to Present Mitigating Evidence
Failure to conduct an adequate investigation may constitute ineffective assistance of
counsel. See Wiggins v. Smith, 539 U.S. 510, 521–23 (2003). As the United States Supreme
Court said in Strickland, “counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at
691. “A claim for ineffective assistance based on trial counsel’s failure to investigate generally
fails absent a showing of what the investigation would have revealed that reasonably could have
changed the result of the case.” Guillory v. State, 652 S.W.3d 499, 505 (Tex. App.—Houston
[14th Dist.] 2022, order on reh’g) (per curiam) (citing Stokes v. State, 298 S.W.3d 428, 432 (Tex.
App.—Houston [14th Dist.] 2009, pet. ref’d)); see Cooks v. State, 240 S.W.3d 906, 912 (Tex.
Crim. App. 2007).
Here, “the record is silent as to what investigative steps counsel took and what
conclusions he may have subsequently drawn.” Guillory, 652 S.W.3d 505 (citing Brown v.
State, 129 S.W.3d 762, 767 (Tex. App.—Houston [1st Dist.] 2004, no pet.)) (“We will not
assume that counsel did not investigate a defense when the record is merely silent as to the depth
of counsel’s investigation.”). “When the record is silent as to counsel’s trial strategy, we may
not speculate about why counsel acted as he did.” Id. at 505–06 (citing Rylander, 101 S.W.3d at
110–11).
16
From this record, we do not know whether Powell’s counsel failed to investigate Powell’s
mental health, or whether he did an investigation and made a tactical decision not to present the
evidence because the records discovered contained unfavorable information. For example,
Powell’s traumatic brain injury could have been caused during an altercation, or his injury may
not have actually been traumatic. Powell’s mental health records could have revealed that he
was not officially diagnosed with any mental illness or that any mental illness was brought on by
drug use. In sum, counsel could have reviewed Powell’s records and decided that presenting
them could have further harmed Powell.
As for failing to present other mitigating evidence, it is possible that counsel conducted a
reasonable investigation and determined that there was no favorable evidence to present.
Counsel could have decided not to have Lacy or other family members testify during punishment
because the State had some knowledge of prior bad acts committed by Powell against his family,
which could have come out during the State’s cross-examination. It is also possible that counsel
did not put Lacy on the stand at punishment because she assisted officers in arresting Powell
after the offense and might have believed that Powell would be unable to complete community
supervision, making a jail sentence more appropriate.
Because we can fathom many reasons for counsel’s failure to present mitigating evidence
at punishment, we overrule Powell’s argument on this ground of alleged ineffective assistance.
2. Failing to Object to the State’s Closing Argument
Next, Powell complains of his counsel’s failure to object to the State’s closing arguments.
17
“[P]roper jury argument generally falls within one of four areas: (1) summation of the
evidence, (2) reasonable deduction from the evidence, (3) answer to an argument of opposing
counsel, and (4) plea for law enforcement.” Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim.
App. 2011) (citing Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008)). Powell argues
that the State veered outside the bounds of proper argument when making the following closing
arguments:
• “He can get a knife. He can slit his mother’s throat.”
• “[W]e see it all the time on TV. People go into schools shooting up schools or
people going to a mall and shooting up a mall. Those folks all have problems.
Well, this guy has problems, you’ve seen it, he has already started it.”
The State does not attempt to justify the improper arguments, but instead assumes error.
Even so, we find that counsel could have had a tactical reason not to object. An
instruction to disregard generally cures error from improper argument. See Mathis v. State, 67
S.W.3d 918, 926–27 (Tex. Crim. App. 2002). Here, counsel could have decided that the jury
was not paying much attention to the State’s closing and that objecting and requesting an
instruction to disregard would have further drawn the jury’s attention to the State’s comments.
See Lopez v. State, 358 S.W.3d 691, 697 (Tex. App.—San Antonio 2011, pet. ref’d); see also
Ruiz v. State, No. 06-08-00136-CR, 2009 WL 36670, at *4 (Tex. App.—Texarkana Jan. 8, 2009,
no pet.) (mem. op., not designated for publication). As a result, we overrule Powell’s argument
on this ground of alleged ineffective assistance.
18
3. Failing to Raise a Motion for New Trial on the Issue of
Competence/Failing to File a Suggestion of Incompetence
As for the motion for new trial, our precedent is clear that a silent record will not support
an ineffective assistance claim. Hudson v. State, 128 S.W.3d 367, 381 (Tex. App.—Texarkana
2004, no pet.). This is because, “[w]hen a motion for new trial is not filed in a case, there is a
rebuttable presumption the defendant was counseled by his or her attorney regarding the merits
of the motion and ultimately rejected the option.” Id. (citing Oldham v. State, 977 S.W.2d 354,
362–63 (Tex. Crim. App. 1998)). “This presumption will not be rebutted when there is nothing
in the record to suggest otherwise.” Id. (citing Smith v. State, 17 S.W.3d 660, 662–63 (Tex.
Crim. App. 2000)). We find it possible that counsel’s conversations with Powell led him to
believe that Powell was competent or that Powell adamantly rejected counsel’s recommendation
to file a motion for new trial.
Next, the silent record disposes of the complaint regarding the failure to file a suggestion
of competence since counsel could have believed that, in spite of his brain injury and mental
illness, Powell had sufficient present ability to consult with him with a rational degree of
understanding and had a rational and factual understanding of the proceedings against him. See
TEX. CODE CRIM. PROC. ANN. art. 46B.003. Accordingly, we overrule this last complaint of
alleged ineffective assistance.
19
V. The Fees Assessed Against Powell Were Proper
In his last point, Powell argues that the trial court erred by ordering him to pay $290.00 in
court costs and $105.00 in reimbursement fees. Specifically, he believes that only $185.00 in
court costs is supported by the record. We disagree.
The certified bill of costs shows that the trial court imposed the following court costs:
STATE CONSOLIDATED COURT COSTS 185.00
DISTRICT CLERK FEE CRIMINAL 40.00
RECORDS MANAGEMENT CRIMINAL 22.50
CLERK RECORD MANAGEMENT 2.50
COURTHOUSE SECURITY 10.00
TECHNOLOGY FEE/DISTRICT CLERK 4.00
DISTRICT COURT JURY FEE 1.00
SPECIALTY COURT (DRUG COURT) 25.00
SHERIFFS FEE CRIMINAL 105.00
TOTAL COST OF CAUSE 395.00
While Powell properly agrees that the State consolidated court costs of $185.00 is correct, he
challenges the remaining costs. See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 1.03, 2019
Tex. Gen. Laws 3981, 3982 (codified at TEX. LOC. GOV’T CODE § 133.102).
Until its repeal in 2019, Article 102.005 of the Texas Code of Criminal Procedure
provided for a $40.00 district clerk fee, a $25.00 record management fee, and a $2.50 clerk
record management fee. See Act of May 27, 1995, 74th Leg., R.S., ch. 764, § 1, 1995 Tex. Gen.
Laws 3969, 3969 (formerly codified at TEX. CODE CRIM. PROC. art. 102.005(a), (f)). However,
Article 102.005 was repealed by the Cost Act in 2019. See Act of May 23, 2019, 86th Leg.,
R.S., ch. 1352, § 1.19(3), 2019 Tex. Gen. Laws 3981, 3992.
20
Article 102.017 had formerly provided for a $5.00 courthouse security fee, not a $10.00
fee. Act of May 22, 1993, 73d Leg., R.S., ch. 818, § 1, 1993 Tex. Gen. Laws 3258, 3258
(effective Sept. 1, 1993). Also, Article 102.0169 had provided for a $4.00 technology fee.
However, Articles 102.017 and 102.0169 were amended by the Cost Act in 2019 to delete those
fees. See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, §§ 1.07, 1.08, 2019 Tex. Gen. Laws
3981, 3987–88.
Instead, all of those former fees were replaced by a Local Consolidated Fee, which
became effective on January 1, 2020. See Act of May 23, 2019, 86th Leg., R.S., ch. 1352 § 1.05,
2019 Tex. Gen. Laws 3981, 3984–85 (codified at TEX. LOC. GOV’T CODE § 134.101). The local
consolidated fee at the time of Powell’s offense was $105.00 and was to be allocated in the
following manner:
(1) the clerk of the court account 38.0953 percent;
(2) the county records management and preservation fund 23.8095 percent;
(3) the county jury fund 0.9524 percent;
(4) the courthouse security fund 9.5238 percent;
(5) the county and district court technology fund 3.8095 percent; and
(6) the county specialty court account 23.8095 percent.
See Act of May 23, 2019, 86th Leg., R.S., ch. 1352 § 1.05, 2019 Tex. Gen. Laws 3985. After
allocating the $105.00 fee in accordance with the proper percentages, it is clear that the $40.00
district clerk fee, $22.50 records management fee, $2.50 clerk record management fee, $10.00
courthouse security fee, and $4.00 technology fee were authorized since they were incorporated
into the Local Consolidated Fee by the Cost Act. Also, the math reveals that the $1.00 jury fee
and the $25.00 specialty court fee were also incorporated into the Local Consolidated Fee.
21
Because the Cost Act provides for imposition of these fees, we overrule Powell’s
invitation to delete them.
The last item in dispute is the $105.00 sheriff reimbursement. Powell’s brief simply
contends that “Texas law does not currently appear to support the assessment of a Sheriffs
Reimbursement Fee.” Critically, Powell fails to argue about whether the record supports the
assessment of this fee. Because Article 102.011 expressly provides for sheriff reimbursement
fees, we overrule Powell’s argument. See TEX. CODE CRIM. PROC. ANN. art. 102.011 (Supp.);
see also Shepard v. State, No. 06-22-00085-CR, 2023 WL 3561037, at *10 (Tex. App.—
Texarkana May 19, 2023, no pet.) (mem. op., not designated for publication); Garrett v. State,
No. 06-23-00077-CR, 2023 WL 5605344, at *1 (Tex. App.—Texarkana Aug. 30, 2023, no pet.)
(mem. op., not designated for publication).
Because the record reveals that the fees assessed against Powell were proper, we overrule
Powell’s last point of error.
VI. Conclusion
We affirm the trial court’s judgment.
Charles van Cleef
Justice
Date Submitted: March 27, 2024
Date Decided: May 16, 2024
Do Not Publish
22