COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-07-465-CR
JAMES ARTHUR NEWELL APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
MEMORANDUM OPINION 1
I. Introduction
A jury found Appellant James Arthur Newell guilty of engaging in
organized criminal activity and assessed his punishment at life imprisonment.
In four issues, Newell asserts that he received ineffective assistance of counsel.
We affirm.
1 … See Tex. R. App. P. 47.4. II. Factual and Procedural Background
In 2006, three members of the Aryan Brotherhood attacked and
repeatedly stabbed James Padgett. Padgett sustained wounds that left him
incapacitated until his death nearly one year later. Newell was not one of the
three individuals who attacked Padgett; however, the State introduced evidence
that Newell, an alleged member of the Aryan Brotherhood, had ordered the
attack on Padgett in retaliation for Padgett supplying methamphetamine to
Newell’s sister. The State charged Newell with engaging in organized criminal
activity. After a trial on the merits, the jury found Newell guilty and sentenced
him to life. This appeal followed.
III. Ineffective Assistance of Counsel
In four issues, Newell argues that he was denied effective assistance of
counsel. Specifically, Newell claims that his trial counsel (1) failed to call
witnesses material to the defense, (2) failed to satisfy an objective standard of
reasonableness with his trial performance, (3) failed to conduct any form of
pretrial investigation, and (4) made cumulative decisions at trial that resulted in
Newell being denied a fair and impartial trial.
A. Standard of Review
To establish ineffective assistance of counsel, an appellant must show by
a preponderance of the evidence that his counsel’s representation fell below the
2 standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v.
State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).
In evaluating the effectiveness of counsel under the first prong, we look
to the totality of the representation and the particular circumstances of each
case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance
was reasonable under all the circumstances and prevailing professional norms
at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S.
Ct. at 2065. Review of counsel’s representation is highly deferential, and the
reviewing court indulges a strong presumption that counsel’s conduct fell within
a wide range of reasonable representation. Salinas, 163 S.W.3d at 740;
Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on
direct appeal to fairly evaluate the merits of an ineffective assistance claim.
Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on
direct appeal is undeveloped and cannot adequately reflect the motives behind
trial counsel’s actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65
3 S.W.3d at 63). To overcome the presumption of reasonable professional
assistance, “any allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” Id. (quoting Thompson, 9 S.W.3d at 813). It is not
appropriate for an appellate court to simply infer ineffective assistance based
upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432
(Tex. Crim. App. 2007).
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial, i.e., a trial with
a reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other
words, appellant must show there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. at 694, 104 S. Ct. at 2068. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Id., 104 S. Ct.
at 2068. The ultimate focus of our inquiry must be on the fundamental fairness
of the proceeding in which the result is being challenged. Id. at 697, 104 S.
Ct. at 2070.
4 B. Discussion
Some of Newell’s issues contain sub-issues; many of his issues and sub-
issues overlap. We will address all of Newell’s issues and sub-issues in the
order they are argued.
1. Failure to Call Witnesses
As part of his first issue, and as a sub-issue under his second and third
issues, Newell complains that he received ineffective assistance of counsel
because his trial attorney failed to call any witnesses material to his defense.
However, contrary to Newell’s complaint, our review of the record shows that
Newell’s sister—who was also the victim’s girlfriend—took the stand as a
witness for the defense and testified that she believed her mother was
responsible for the attack on Padgett. Furthermore, Newell has failed to
articulate who his trial attorney should have called as witnesses and what they
would have testified to that would have helped his case. See King v. State,
649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (holding that an appellant who
complains about trial counsel’s failure to call witnesses must show that
witnesses were available and that the witnesses’ testimony would have
benefitted his case). Therefore, based on the record before us, Newell has
failed to show that his trial attorney’s failure to call witnesses resulted in
ineffective assistance. Accordingly, we overrule those portions of Newell’s
5 argument under issues one, two, and three asserting ineffective assistance due
to failure to call witnesses.
2. Failure to Conduct any Pre-trial Investigation
As a sub-issue under his first and second issues, and as part of his third
issue, Newell claims that his trial attorney’s lack of pre-trial investigation
resulted in ineffective assistance of counsel. However, the record does not
reflect what investigation, if any, was performed before trial, and Newell has
failed to develop a record of the information that his trial attorney would have
discovered through further investigation. Therefore, without support in the
record for his assertions regarding lack of investigation, Newell cannot
demonstrate ineffective assistance of counsel. See McFarland v. State, 928
S.W.2d 482, 500 (Tex. Crim. App.
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-07-465-CR
JAMES ARTHUR NEWELL APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
MEMORANDUM OPINION 1
I. Introduction
A jury found Appellant James Arthur Newell guilty of engaging in
organized criminal activity and assessed his punishment at life imprisonment.
In four issues, Newell asserts that he received ineffective assistance of counsel.
We affirm.
1 … See Tex. R. App. P. 47.4. II. Factual and Procedural Background
In 2006, three members of the Aryan Brotherhood attacked and
repeatedly stabbed James Padgett. Padgett sustained wounds that left him
incapacitated until his death nearly one year later. Newell was not one of the
three individuals who attacked Padgett; however, the State introduced evidence
that Newell, an alleged member of the Aryan Brotherhood, had ordered the
attack on Padgett in retaliation for Padgett supplying methamphetamine to
Newell’s sister. The State charged Newell with engaging in organized criminal
activity. After a trial on the merits, the jury found Newell guilty and sentenced
him to life. This appeal followed.
III. Ineffective Assistance of Counsel
In four issues, Newell argues that he was denied effective assistance of
counsel. Specifically, Newell claims that his trial counsel (1) failed to call
witnesses material to the defense, (2) failed to satisfy an objective standard of
reasonableness with his trial performance, (3) failed to conduct any form of
pretrial investigation, and (4) made cumulative decisions at trial that resulted in
Newell being denied a fair and impartial trial.
A. Standard of Review
To establish ineffective assistance of counsel, an appellant must show by
a preponderance of the evidence that his counsel’s representation fell below the
2 standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v.
State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).
In evaluating the effectiveness of counsel under the first prong, we look
to the totality of the representation and the particular circumstances of each
case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance
was reasonable under all the circumstances and prevailing professional norms
at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S.
Ct. at 2065. Review of counsel’s representation is highly deferential, and the
reviewing court indulges a strong presumption that counsel’s conduct fell within
a wide range of reasonable representation. Salinas, 163 S.W.3d at 740;
Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on
direct appeal to fairly evaluate the merits of an ineffective assistance claim.
Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on
direct appeal is undeveloped and cannot adequately reflect the motives behind
trial counsel’s actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65
3 S.W.3d at 63). To overcome the presumption of reasonable professional
assistance, “any allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” Id. (quoting Thompson, 9 S.W.3d at 813). It is not
appropriate for an appellate court to simply infer ineffective assistance based
upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432
(Tex. Crim. App. 2007).
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial, i.e., a trial with
a reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other
words, appellant must show there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. at 694, 104 S. Ct. at 2068. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Id., 104 S. Ct.
at 2068. The ultimate focus of our inquiry must be on the fundamental fairness
of the proceeding in which the result is being challenged. Id. at 697, 104 S.
Ct. at 2070.
4 B. Discussion
Some of Newell’s issues contain sub-issues; many of his issues and sub-
issues overlap. We will address all of Newell’s issues and sub-issues in the
order they are argued.
1. Failure to Call Witnesses
As part of his first issue, and as a sub-issue under his second and third
issues, Newell complains that he received ineffective assistance of counsel
because his trial attorney failed to call any witnesses material to his defense.
However, contrary to Newell’s complaint, our review of the record shows that
Newell’s sister—who was also the victim’s girlfriend—took the stand as a
witness for the defense and testified that she believed her mother was
responsible for the attack on Padgett. Furthermore, Newell has failed to
articulate who his trial attorney should have called as witnesses and what they
would have testified to that would have helped his case. See King v. State,
649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (holding that an appellant who
complains about trial counsel’s failure to call witnesses must show that
witnesses were available and that the witnesses’ testimony would have
benefitted his case). Therefore, based on the record before us, Newell has
failed to show that his trial attorney’s failure to call witnesses resulted in
ineffective assistance. Accordingly, we overrule those portions of Newell’s
5 argument under issues one, two, and three asserting ineffective assistance due
to failure to call witnesses.
2. Failure to Conduct any Pre-trial Investigation
As a sub-issue under his first and second issues, and as part of his third
issue, Newell claims that his trial attorney’s lack of pre-trial investigation
resulted in ineffective assistance of counsel. However, the record does not
reflect what investigation, if any, was performed before trial, and Newell has
failed to develop a record of the information that his trial attorney would have
discovered through further investigation. Therefore, without support in the
record for his assertions regarding lack of investigation, Newell cannot
demonstrate ineffective assistance of counsel. See McFarland v. State, 928
S.W.2d 482, 500 (Tex. Crim. App. 1996) (holding that any allegation of
ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness), overruled on other
grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998).
Accordingly, we overrule those portions of Newell’s argument under his first,
second, and third issues claiming ineffective assistance due to lack of
investigation.
6 3. Lack of an Opening Statement
As part of his first issue, Newell asserts that his trial attorney was
ineffective for failing to make an opening statement. However, there is a
presumption that an attorney’s decisions at trial are formulated based on sound
trial strategy. Cardenas v. State, 30 S.W.3d 384, 391 (Tex. Crim. App. 2000).
Newell did not file a motion for new trial alleging ineffective assistance of
counsel. As a result, we do not have the benefit of knowing the trial attorney’s
reasons for not giving an opening statement. Therefore, Newell has failed to
rebut the presumption that such decision was based on sound trial strategy.
See Standerford v. State, 928 S.W.2d 688, 697 (Tex. App.—Fort Worth 1996,
no pet.) (holding that the failure to give an opening statement has been held to
be a valid tactical decision). Accordingly, we overrule the portion of Newell’s
argument under his first issue asserting ineffective assistance based on his trial
attorney’s failure to make an opening statement.
4. Failure to File Pre-trial Motions
As part of his second issue, Newell argues that his trial attorney did not
provide effective assistance of counsel because, other than a form motion in
limine, he failed to file pre-trial motions and obtain rulings on substantive issues
that figured prominently during trial. Moreover, Newell argues that had pre-trial
motions been filed, his trial attorney would have been better informed as to the
7 consequences of rejecting a plea bargain agreement offered by the State.
However, Newell has failed to articulate which meritorious motions his trial
attorney could have filed that would have resulted in a change in the outcome
of the case. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App.
1998) (holding that unless appellant shows that a pretrial motion had merit and
that a ruling on the motion would have changed the outcome of the case,
counsel will not be ineffective for failing to assert the motion). Therefore,
based on the record before us, Newell cannot show that his trial attorney’s
failure to file pre-trial motions resulted in ineffective assistance of counsel.
Accordingly, we overrule the portion of Newell’s argument under his second
issue claiming ineffective assistance due to his trial attorney’s failure to file pre-
trial motions. 2
2 … As part of his second issue, in a point heading only, Newell raised ineffective assistance of counsel based on his trial attorney’s failure to complete a competent cross-examination of the State’s expert. However, Newell failed to set forth any argument or legal authority to support his position. Therefore, we overrule this portion of his argument as inadequately briefed. See Tex. R. App. P. 38.1(h); Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053 (2001); Mosley v. State, 983 S.W.2d 249, 256 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999) (holding that if a party provides no argument or legal authority to support its position, the appellate court may properly overrule the issue or point as inadequately briefed). In addition, as a sub-issue under his second issue, Newell argues ineffective assistance of counsel due to his trial attorney’s failure to ensure that Newell’s sister remained outside the courtroom pursuant to invoking “the rule.”
8 5. Cumulative Effect of Decisions
Finally, in his fourth issue, Newell asserts that he was denied effective
assistance of counsel as a result of his trial attorney’s cumulative decisions and
lack of action before and during trial. However, our review of the record shows
that Newell’s trial attorney (1) successfully argued his motion in limine, (2)
elicited testimony from the State’s witnesses sufficient to impeach their
credibility and cast doubt on the State’s case, (3) elicited testimony implicating
someone other than Newell for the crime, and (4) competently argued that the
State lacked evidence to connect Newell to the stabbing. Therefore, based on
the record before us, Newell has failed to establish by a preponderance of the
evidence that his trial attorney’s conduct was not reasonable under the totality
of the circumstances and prevailing professional norms.3 See Strickland, 466
U.S. at 688–89, 104 S. Ct. at 2065. Accordingly, we overrule Newell’s fourth
issue.
However, it is unclear from the record and Newell’s brief how this instance would amount to ineffective assistance. Therefore, we also overrule this sub- issue as inadequately briefed. See Tex. R. App. P. 38.1(h); Mosley, 983 S.W.2d at 256. 3 … Absent specific explanations for counsel’s decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective-assistance claim. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Ordinarily, this kind of record is best developed in a hearing on an application for writ of habeas corpus or a motion for new trial. Jackson, 973 S.W.2d at 957.
9 IV. Conclusion
Having overruled all of Newell’s dispositive issues, we affirm the trial
court’s judgment.
BOB MCCOY JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: December 11, 2008