Johnny Ray Armstrong v. State

• Court: Court of Appeals of Texas
• Decided: September 17, 2020
• Docket: 02-19-00256-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-19-00256-CR ___________________________

JOHNNY RAY ARMSTRONG, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 271st District Court Wise County, Texas Trial Court No. CR20548

Before Gabriel, Bassel, Womack, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION

I. INTRODUCTION

Appellant Johnny Ray Armstrong appeals his conviction and life sentence for

the murder of Ruben Dunlap. In four issues, Armstrong argues that (1) he was

denied effective assistance of counsel when the trial court chose not to entertain

closing arguments at the punishment phase of trial, (2) he was egregiously harmed by

the trial court not allowing closing arguments, (3) he received ineffective assistance of

counsel when his attorney did not object to the trial court not allowing closing

arguments before sentencing, and (4) the evidence is insufficient to support his

conviction. We affirm.

II. BACKGROUND

A. 911 Calls Regarding Armstrong

Marissa Martinez, who was working as a 911 dispatcher for the Wise County

Sheriff’s Office on February 28, 2018, testified that she received a call regarding a

possible shooting at Armstrong’s residence at roughly 8:24 p.m. Martinez said that

because the call related to incidents in the neighboring town of Bridgeport, she

dispatched medics to the scene but then transferred the call to a Bridgeport

dispatcher. Later, at roughly 11 p.m., Martinez received another call regarding

Armstrong’s crashed and abandoned vehicle in Wise County. The next night,

someone called Martinez’s co-dispatcher and said that he had seen Armstrong at a

truck stop in Alvord. The caller texted a picture of Armstrong to the co-dispatcher.

2 Makenna Bates, a dispatcher for the Bridgeport Police Department, testified

that she received the transferred dispatch at 8:27 p.m. on February 28, 2018. While

Bates was on the stand, the State published the 911 call for the jury. In the audio, the

caller can be heard describing that “Ruben Dunlap” had “a puddle of blood” around

him, was unresponsive, had a headwound, but was breathing. The caller said that he

did not see what had happened, but he heard a loud noise and came out to find

Dunlap shot in the head with a gun lying nearby and that he believed Dunlap had shot

himself. The caller identified himself as “Johnny Armstrong.” 1

B. Officers Respond to the Scene of the Shooting

Officer Cody Barlow of the Bridgeport Police Department testified that he was

dispatched to 1506 Brush Street on the night Dunlap was shot. Barlow said that he

and Officer Nicolas Yates arrived at the scene at roughly the same time. As Barlow

entered the living room, he saw Dunlap sitting with his back against a wall and blood

appeared to be coming out of his head. Barlow stated that the blood continued to

pool while he was there and that Dunlap was “still moving or twitching.” While

Barlow did not search the house, he observed marijuana in plain sight.

Barlow also found Johnny in the house. According to Barlow, he and Yates

both spoke with Johnny that night. While speaking with Johnny, Barlow heard a

cough coming from the back of the house. Barlow ordered the person to come into

1 The Appellant in this case is named Johnny Armstrong and so is his son. We refer to Appellant as Armstrong and Appellant’s son as Johnny.

3 the living room and learned that it was a young man named Jackie Armstrong,2 who is

Armstrong’s nephew and Johnny’s cousin. Barlow placed Jackie in the back of a

patrol car to keep him separated from Johnny. Eventually, officers transported

Johnny, Jackie, and a woman named Shannon Geninatti Hardy to the police station.

Hardy was Armstrong’s girlfriend at the time.3 According to Barlow, he turned his

body camera on as he entered the Brush Street residence. The State played footage

from Barlow’s body camera depicting his entry into the house, some of his encounter

with Johnny, and eventually his transportation of Jackie to the police station.

Yates testified that he arrived at the residence shortly before Barlow. He also

said that he was familiar with Armstrong, Johnny, and Hardy from previous

interactions. After making contact with Johnny and observing Dunlap’s condition,

Yates found a gun on a nearby love seat. Yates asked Johnny how the gun got there,

and Johnny told Yates that he initially found it lying near Dunlap’s right leg, but he

had picked it up and moved it to the love seat. By Yates’s account, Johnny’s

description of where he found the gun was inconsistent with the gunshot wound he

observed on the left side of Dunlap’s head. But Yates averred that he did not suspect

that Johnny had been involved in the shooting.

2 Both Armstrong and the State spelled Jackie’s name as “Jacky” in their briefs, but the trial transcript spells his first name as “Jackie,” and we will do the same in this opinion. 3 Some witnesses testified that Hardy was Armstrong’s common-law wife.

4 Yates also encountered Hardy at the scene and spoke with her. Yates said that

he could not understand much of what Hardy was saying because she “was hysterical

[and] having trouble forming a coherent sentence.” Yates was able to understand that

Hardy had said a couple of times that Dunlap was going to give her a ride to Sonic.

Hardy was also able to communicate to Yates that there was a gun in the house, but

she did not know where it was. Yates later spoke with Hardy a second time, and she

told him that Armstrong had shot Dunlap. Based on that statement as well as things

he had learned from the other officers who had interviewed other witnesses, a warrant

was issued for Armstrong for the offense of aggravated assault with a deadly weapon.

According to Yates, a broadcast was sent out to find Armstrong and his white

Expedition, which Yates said was later found crashed off Farm to Market Road 1810

near Chico. Yates said that after Johnny, Jackie, and Hardy finished their interviews,

they were released and all three ended up back at the Brush Street residence. By

Yates’s account, Dunlap’s mother arrived on scene after police had arrived.

C. Armstrong Absconds

Elizabeth Buhay of the intelligence and counterterrorism division of the Texas

Department of Public Safety conducted an investigation into the contents of

Armstrong’s phone. Buhay was able to trace Armstrong’s cellphone location, and she

discovered that he would have been driving away from the Brush Street residence

shortly after the shooting and toward where Armstrong’s white Expedition was later

5 found wrecked and abandoned. The Expedition appeared to have crashed through a

fence and had barbwire wrapped around some of its tires.

Texas Department of Public Safety Trooper Jose Gomez investigated the crash

scene where Armstrong’s Expedition was found at 11:02 p.m. on February 28.

Gomez said that he learned that Armstrong owned the vehicle and that he lived at

1506 Brush Street. He also heard that Armstrong was the last person seen driving the

Expedition. While he was at the crash scene, Gomez learned that other officers were

looking for Armstrong, and some of the officers came to the crash scene to

investigate.

Daniel Bentley, who knew Armstrong, lived with his parents off Highway 101

between Bridgeport and Chico at the time of the shooting. In the early morning

hours of March 1, Armstrong knocked on Bentley’s bedroom window. Bentley said

he went outside to speak with Armstrong and that Armstrong appeared “all shook

up,” and he was dressed in jeans, a bright yellow vest, a hard hat, and “rubber” boots.

Bentley testified that Armstrong did not normally wear the vest and hard hat, and he

could not recall seeing any blood on Armstrong.

Bentley asked Armstrong what was wrong, and Armstrong said that he had

wrecked his vehicle. By Bentley’s account, Armstrong came to his house in a truck

that was not Armstrong’s, and the vehicle bore the markings of a rock crushing

business. Armstrong told Bentley that he needed a ride, and when Bentley asked

Armstrong why he needed a ride given he had driven there in a truck, Armstrong said

6 the truck was “borrowed.” Bentley insisted that Armstrong take the truck back to its

owner.

Armstrong returned the truck and then met Bentley at a nearby park in Chico.

While at the park, Armstrong told Bentley that a “kid” named “Ruben” was playing

with a gun and had shot himself at Armstrong’s house, and Armstrong did not want

to return home. Armstrong asked Bentley to drive him toward Alvord. Bentley said

that he did and that he dropped Armstrong off on the side of the road near a truck

stop in Alvord. Bentley recalled that for most of the time Armstrong was with him,

Armstrong did not say much, but he did tell Bentley that he did not have “a friend in

the world but” Bentley.

Later that day, Armstrong called Bentley. Bentley said that he informed

Armstrong that Dunlap was still alive, and Armstrong “sounded relieved.” Allegedly,

Armstrong asked Bentley if Dunlap was “talking,” which Bentley interpreted to mean

whether Dunlap “was talking so he could tell what happened.”

Bentley also recalled that he had gone to the Brush Street residence after

lunchtime on February 28 to visit Armstrong and smoke methamphetamine. While

he was there, he saw Johnny, Jackie, “and another [male] kid [with] blondish hair.”

Bentley said that Armstrong had expressed that he did not want the boys in the house.

Mark Nowak, assistant plant manager at Lehigh Hanson, the Bridgeport rock

quarry near Farm to Market Road 1810 where Armstrong’s crashed Expedition was

found, testified at trial. Nowak said that on March 1, 2018, he learned from an

7 employee that some items were missing from a vehicle on site and from the site’s

mobile shop. According to Nowak, after reviewing surveillance video and learning

that items had been taken by an unidentified man, he contacted the police. The State

published the surveillance video for the jury, which was captured on March 1, 2018, at

2:59 a.m. The footage showed Armstrong, who was wearing a light yellow vest and

rubber boots, walking (and sometimes stumbling) around the shop. At one point,

Armstrong carefully opened a door, entered an adjoining room, and then exited the

room wearing a hard hat. Armstrong then left the shop. Nowak identified the vest,

the boots, and the hard hat as all being Lehigh Hanson property.

Christopher Van Syoc, an employee of Lehigh Hanson, testified that he had

seen a man walking away from the shop not long after 3 a.m. on March 1, 2018.

Believing he was a Lehigh Hanson employee, Van Syoc offered the man a ride after

the man told him his vehicle had gotten stuck. Van Syoc said that he drove

Armstrong to an Allsup’s in Chico, which is not far from the park where Armstrong

met Bentley. Van Syoc said that he grew suspicious after Armstrong threw the hard

hat in the back of Van Syoc’s truck and after Van Syoc could not locate a stuck

vehicle near where he found Armstrong. Van Syoc soon returned to the Allsup’s and

asked the cashier about Armstrong. The cashier told Van Syoc that the sheriff’s

department had come to the store looking for somebody involved in an accident near

Farm to Market Road 1810. Van Syoc said that he then called the sheriff’s office to

report what had happened.

8 Jared Swiney, who was working at the truck stop where Bentley dropped

Armstrong off on March 1, testified that law enforcement came to the truck stop and

showed him a picture of Armstrong, but he did not recognize him. Shortly after the

officers left, Armstrong came out of the bathroom, Swiney then recognized him, and

he took a picture of Armstrong with his cellphone. Swiney then called the Wise

County Sheriff’s Department and reported what he had seen, and he sent the picture

he had taken. In the call, Swiney described Armstrong as wearing “purple mud”

boots, and he said that Armstrong had left the store.

Jack McGuinn, an investigator with the 271st District Attorney’s Office,

testified that he had mapped the different locations where Armstrong had been

between the shooting and where he was eventually apprehended. By using a visual

aide, McGuinn explained to the jury how Armstrong had traveled from his Brush

Street residence to the crash site on Farm to Market Road 1810. McGuinn then was

able to trace Armstrong’s movements from Bentley’s residence to the quarry plant, to

the Allsup’s in Chico, and ultimately to the truck stop in Alvord.

Corporal Lyle Hahn of the Bridgeport Police Department testified that he was

dispatched to a location not far from the Alvord truck stop after 7:00 p.m. on

March 1, 2018. When he arrived on scene, Hahn spoke with the individual who had

called the police. The individual confirmed that he had seen Armstrong earlier,

Armstrong had asked to use his phone charger, and Armstrong had then proceeded

across the street to an abandoned trailer. Hahn said that by this time, an arrest

9 warrant had already been issued for Armstrong. According to Hahn, he went to the

location of the trailer and found coveralls and a first aid kit that had been taken from

the quarry shop. Hahn averred that these items could not have already been there

prior to Armstrong having been seen there.

Receiving word that Armstrong had been seen at the truck stop in Alvord,

Hahn proceeded there. With the help of a helicopter and several other officers, Hahn

was able to locate Armstrong in the truck stop’s parking lot. As officers approached

Armstrong, he walked toward the officers. At that point, Hahn aimed his weapon at

Armstrong and ordered him to the ground. Hahn said that Armstrong did not

comply; instead, Armstrong told Hahn, “You’re gonna have to shoot me.” After a

few warnings, Hahn pulled out his Taser and tased Armstrong, who fell to the ground

and was taken into custody.

Officer Mathew Thomas, formerly of the Bridgeport Police Department, said

that he participated in the search for Armstrong and was present when Armstrong

was apprehended. While questioning Swiney, the truck-stop employee, Thomas

received a broadcast from the helicopter pilot that Armstrong was hiding under the

trailer of a nearby 18-wheeler. Similar to Hahn’s testimony, Thomas said that as

Hahn and other officers approached Armstrong, he heard Armstrong say, “[J]ust

shoot me.” At that time, Hahn deployed his Taser, and the officers apprehended

Armstrong. Because Armstrong told the officers he had ingested methamphetamine,

they had Armstrong transported to the hospital.

10 D. Cause of Dunlap’s Death

Doctor Marc Andrew Krouse, the Deputy Chief Medical Examiner in Fort

Worth, conducted and presided over the autopsy of Dunlap’s body. Pictures of the

autopsy and of Dunlap when he was in the hospital were published to the jury.

Krouse’s autopsy revealed that Dunlap had died of a single gunshot wound to the left

side of his head. According to Krouse, his examination revealed that Dunlap would

have been wearing something consistent with a baseball cap at the time he was shot

and that he had been shot from an intermediate distance, more than two but less than

three feet away. Krouse said that the toxicology report based on Dunlap’s blood

drawn at the hospital prior to any medical intervention revealed he had THC,

Alprazolam, and methamphetamine in his system when he was shot. Krouse said that

the examiner’s office ruled Dunlap’s death a homicide.

E. Other Witness Testimony

Kendra Smith, Dunlap’s former girlfriend, testified that Dunlap had served a

few months in jail for driving while intoxicated and possession of drugs. Smith stated

that there were rumors that Dunlap had been released early because he had provided

information on other people to the police. Smith said that her encounters with

Armstrong left her with the impression that he was paranoid and “concerned about

the police, and they had cameras and stuff of that sort.” Smith also told how a year or

more before Dunlap’s murder, Hardy’s son Devin Geninatti allegedly committed

suicide by jumping in front of a car.

11 Chloe Edwards, Armstrong’s neighbor, testified that she had come home from

school on February 28 and remembered hearing a “loud bang” that she believed to be

a gunshot. Edwards said that she got her sister and the two of them went outside.

Edwards averred that she saw Hardy crying “[a] lot” and eventually sitting down on a

neighbor’s porch. According to Edwards, she, her sister, and other neighbors went to

check on Hardy, who Edwards described as “skitzing out.” Edwards recalled that

Hardy “was saying that [Armstrong] did something to [Dunlap], and she wouldn’t tell

us what he did.” Hardy then called Dunlap’s mother in Edwards’s presence.

According to Edwards, she could hear Hardy say to Dunlap’s mother, “[Y]ou need to

get over here fast. [Armstrong] just shot [Dunlap].”

Another neighbor, Mitchell Comer, testified that on the evening of

February 28, he heard yelling and a loud “bang” from outside his window, which

Comer agreed sounded like a gunshot. Comer said that his first thought was that “the

Armstrongs [were] going at it again.” After hearing the noise, Comer said that he saw

Armstrong walking out of his house and yelling, but Comer could not make out what

Armstrong was yelling. He then saw Armstrong get into the white Expedition and

hurriedly drive away. Comer said that ambulances and police vehicles soon arrived.

He then saw Hardy walking around talking on her phone. According to Comer,

Hardy appeared “very upset,” she could not speak in coherent sentences, and she

“had tears, snot coming down her face.” Comer recalled that Hardy told the person

on the other end of the phone that they needed to get over there because Armstrong

12 had done “something bad.” “And then she ended up saying, [Armstrong] hurt

[Dunlap].”

Comer said that once the police began to speak with Hardy, she told them what

had happened in more detail:

What she said was that – she still was crying and everything too, but she said that she needed a ride to Sonic because [Armstrong] had tore up her truck to where she couldn’t drive it and that [Dunlap] was gonna give her a ride and that they started arguing and then [Armstrong] shot him and left.

Comer testified that Johnny had once told him that if Armstrong ever did

anything wrong, he would “cover for him” and that he spoke with Johnny later that

night and hung up on him because he thought Johnny was lying about having been

asleep when Dunlap was shot. Comer said that the Armstrongs did not believe that

Hardy’s son had killed himself a few years earlier and that they speculated that Dunlap

may have been involved in Hardy’s son’s death. According to Comer, the cops were

called to Armstrong’s house “almost every night,” and he “never knew what was

going on” at that house. Comer averred that the gunshot he heard on February 28

was not the first time he had heard gunshots emanating from Armstrong’s house:

“[T]here’s several times I’ve heard shots.” And he recalled an event where Hardy had

shot at Armstrong.

Bridgette Walker, Comer’s mother and another of Armstrong’s neighbors,

testified about the events that night, and she remembered Hardy saying, “I can’t

believe he did it.” By Walker’s account, Hardy had come to her house a few weeks

13 earlier in only a t-shirt and underwear, and her legs were covered in cuts and bruises.

Hardy told Walker that Armstrong had struck her and that she was scared, so Walker

called the police. Hardy also told Walker that she believed Armstrong and Johnny

were involved in her son’s death.

Dylan Craig testified that he, Johnny, Jackie, and Dunlap had all met at

Armstrong’s house to play video games on February 28, and Dunlap was very relaxed

because he was under the influence of Xanax. According to Craig, Armstrong was

acting “shady,” and Jackie told him that Armstrong thought that Craig and Dunlap

were “cops.” Craig also said that Armstrong appeared to be “strung out” on

methamphetamine. Craig averred that he had known Dunlap for some time and that

Dunlap had never indicated that he was suicidal. To the contrary, Craig described

Dunlap as “always happy, making jokes, [and] having a good time.” Craig said that

after learning of Dunlap’s being shot, he called Jackie, who told him he could not talk

because the police were there. Craig also said that he spoke with Jackie the next day

and that Jackie said that after he had heard the gunshot, Armstrong ran into the room

Johnny and Jackie were in and stated that he had shot Dunlap. Jackie also allegedly

told Craig that Armstrong had taken “the dope” and left. And Jackie told Craig that

Dunlap had been trying to give Hardy a ride to Sonic, but Armstrong told him not to,

but Dunlap insisted. Jackie told Craig there had been an argument, and Armstrong

shot Dunlap.

14 Erica Geninatti, Hardy’s daughter, testified that Hardy and Armstrong were

common-law married at the time of the shooting. She said that she knew Johnny and

Dunlap because she used to live at the Brush Street residence. Geninatti stated that

when she lived there, Armstrong and Hardy were constantly accusing each other of

infidelity, and Hardy would often leave in the middle of the night to get away from

the arguments. According to Geninatti, Armstrong was very jealous and would not

let Hardy leave with another man to go anywhere. She described Armstrong as “very

intimidating.” Geninatti recalled how on one occasion, she stood up to Armstrong,

and he spit in her face and told her to leave. By Geninatti’s account, Hardy did not

believe that her son had committed suicide, and Hardy believed that Johnny and

Armstrong were involved in her son’s death. Geninatti said that Armstrong owned a

.38 revolver, and at one point, Hardy called her and told her that Armstrong had shot

Dunlap because Dunlap had offered to drive Hardy to Sonic. Given her familiarity

with Armstrong, it did not surprise Geninatti to learn that Armstrong would shoot

someone over something so trivial.

Maria Garza, Dunlap’s mother, said that on the night of Dunlap’s murder,

Hardy had told her that Armstrong had shot Dunlap over Hardy’s wanting a ride to

Sonic. Garza said that she went to the Brush Street residence after learning of

Dunlap’s shooting, but the police would not let her enter the house. Eventually,

Garza made her way to the hospital, but Dunlap was unresponsive and later died.

15 Jackie testified that Armstrong and Hardy were “bipolar” toward each other in

that “one minute they’re mad and one minute they’re okay.” Jackie described how in

the week leading up to the shooting, he and Johnny, and sometimes Armstrong, had

been on a week-long methamphetamine “binge.” According to Jackie, on the day of

February 28 and at the request of Armstrong, he and Johnny had disabled

Armstrong’s truck because Hardy “kept stealing” it. Dunlap showed up later and

Jackie, Johnny, and Dunlap were playing video games as well as smoking marijuana

and methamphetamine. Dunlap had also taken Xanax. Jackie described Dunlap as

“friendly” and as not having “a mean bone in his body.” Jackie and the others took a

ride for a while, leaving only Armstrong and Hardy in the house, and then returned

just as it was getting dark. By Jackie’s account, he and Johnny went back to the room

to play more games and to sleep. Jackie said that when he and Johnny went to

Johnny’s room, Hardy, Armstrong, and Dunlap were still outside. Shortly after, Jackie

heard a gunshot, so both he and Johnny ran into the living room and found Dunlap

on the floor with a gunshot wound and a gun lying next to him. At the same time, he

saw Armstrong and Hardy exiting the front door.

Jackie said that he ran to his room to find his cellphone in order to call 911,

and when he returned to the living room, Armstrong had come back inside.

Armstrong told Jackie to give him any drugs that he may have because he was leaving.

Jackie admitted that he falsely told the police when they arrived that he had not seen

Armstrong that day because he “was scared” but that shortly before trial he admitted

16 to Armstrong’s presence when the shooting occurred. Jackie did not believe that

Dunlap was suicidal. According to Jackie, a month after the shooting, Hardy told him

that Armstrong had not shot Dunlap. Jackie also said that Armstrong was suspicious

of others, and he often accused others of working for the police. He would

sometimes ask Jackie to lift up his shirt to show that he was not wearing “a wire.”

According to Jackie, Armstrong had asked him whether Dunlap was working for the

police.

Johnny testified he was living with Hardy and Armstrong the day of the

shooting. He also said that Hardy blamed him for her son’s death. Like Jackie’s

testimony, Johnny said that he and Jackie had been “holed up” in his room for several

days before Dunlap was shot, smoking methamphetamine and playing video games.

Johnny recalled that on February 28, Dunlap had smoked methamphetamine with

him and Jackie.

According to Johnny, there had been prior discussions in the Armstrong house

about how Dunlap may have been involved in Hardy’s son’s death. Johnny said that

he, Dunlap, and others had gone to sell some marijuana that afternoon and returned

just before dark. Johnny and Jackie retreated to Johnny’s room to play video games

when he heard a loud sound. Johnny testified that he did not recall Armstrong

coming into his room; rather, he and Jackie ran to the living room to see what had

happened. Johnny said he saw Dunlap lying on the ground with blood “falling out of

his head,” but he did not recall seeing either Armstrong or Hardy. He also saw a gun

17 on the ground near the left side of Dunlap’s body. Johnny said that after Armstrong

was arrested, he visited him in jail, and Armstrong said that Dunlap had tossed him

the gun and that it accidently fired and shot Dunlap. By Johnny’s account, a few

weeks after the shooting, Hardy came to Sonic where Johnny was working and told

him that she was the one who had shot Dunlap.

Johnny also recalled a time when Hardy had shot at Armstrong and the police

were called. Johnny said that two weeks prior to Dunlap’s being shot, Hardy once

pointed a gun at him and accused him of having killed her son. Johnny stated that the

gun Dunlap was shot with was Hardy’s gun.

Natalie Vidal testified that she was Armstrong’s former wife and Johnny’s

mother. Vidal said that Johnny told her about the night that Dunlap was shot and

described how when Dunlap was speaking with Armstrong, he and Jackie heard a

loud noise, they went to the living room, Dunlap was lying on the floor, and

Armstrong was not there. Vidal said that a few weeks after Dunlap’s death, Hardy

told her that Armstrong was not the person who had shot Dunlap and that the person

responsible for Dunlap’s death was going to confess; Vidal noted, however, that

Hardy had previously told her that Armstrong was Dunlap’s shooter. Vidal recalled a

conversation with Johnny after the shooting where Johnny said, “I can’t believe my

dad just left me there,” referring to Armstrong’s leaving on the night of the shooting.

Hardy, who was incarcerated at the time of her testimony for aggravated assault

with a deadly weapon and testified pursuant to a bench warrant, said that the .38

18 revolver was Armstrong’s gun. According to Hardy, Armstrong had choked her to

the point of unconsciousness two weeks prior to Dunlap’s death. She said that when

she awoke, she was barely clothed and that she tried to leave, but Armstrong would

not allow it. Hardy stated that she eventually was able to escape and fled to a

neighbor’s house.

Hardy described how on February 28, several of Johnny’s friends were in and

out of the house. Eventually, Dunlap came to the house, and he and others left for a

short time. According to Hardy, there “had been talk” between her and Armstrong

that Dunlap was an undercover informant for the police and that he had been

involved in her son’s death. Hardy said that after the boys left, she attempted to drive

her truck to Sonic, but the truck would not start. About that time, Dunlap and the

others returned, and Dunlap offered to drive Hardy to Sonic. Hardy said that she

went inside the house and into her bedroom to get her purse and umbrella and to also

lock the bedroom door. By this time, Armstrong and Dunlap were standing in the

living room. Hardy then went into the living room, and Armstrong told her to shut

the front door, but she did not, so Armstrong shut the door. Hardy said that the next

thing she saw was Armstrong “pull out the gun” from his waistband “and shoot”

Dunlap. Hardy recalled how Armstrong was “point-blank range” from Dunlap and

aimed at his head before pulling the trigger. Hardy said that Dunlap was looking at

his phone when Armstrong shot him.

19 Hardy recalled how she tried to run out the front door, but Armstrong grabbed

her. At that moment, according to Hardy, Johnny ran into the living room, so

Armstrong released his grip on her and seized him, which enabled Hardy to run out

the front door. Hardy said that she made it to the neighbor’s front yard before

Armstrong caught her and said that she “owed” him. By Hardy’s account, Johnny

came outside the house at that time, so Armstrong let her go and ran and pushed

Johnny back into the house. Hardy eventually ran to a neighbor’s house and hid, and

then she heard an engine racing, which she believed to be Armstrong leaving. Shortly

after, Hardy said that the police arrived. From there, Hardy borrowed a neighbor’s

phone, called Dunlap’s mother, and told her that he had been shot. Hardy said that

after talking to the police that evening, she hid at friends’ houses until she learned that

Armstrong had been arrested.

Hardy said that she visited Armstrong in jail and that he told her that the

people involved in her son’s death were “dropping like flies,” and then, using sign

language, he spelled out Hardy’s daughter’s name, which Hardy interpreted as a threat

toward her daughter. Hardy denied ever having spoken to anyone at Sonic and saying

that Armstrong was not the shooter. She also denied having ever told Johnny, Jackie,

or Vidal that she was the shooter. While Hardy was on the stand, the State read notes

from Hardy’s counselor where the counselor wrote that Hardy had told her that

Armstrong had murdered someone in front of her, that she was going to testify about

the events in court, and that she feared that Armstrong would have her killed.

20 F. The Investigation

Texas Ranger James Holland testified that he interviewed Armstrong on

March 2, 2018, after Armstrong was in custody. The State published the interview for

the jury. In the interview, Armstrong claimed that Dunlap had “tossed” him the gun

and that it “went off.” Armstrong said that after that, he “freaked out” because there

were drugs in the house, and he left. Armstrong persisted that he had no reason to be

upset with Dunlap because Dunlap was doing him a favor by offering to drive Hardy

to Sonic. And Armstrong said repeatedly that what happened was an accident.

According to Armstrong, he and Dunlap were the only people in the room when the

shooting occurred, and Hardy was the first to come into the room afterwards, and

then she ran out the door. Armstrong said that Johnny and Jackie then came out and

“everyone was freaking out wondering what to do.” Armstrong stated that he then

ran out of the house in pursuit of Hardy. Armstrong went back into the house, told

Johnny to call for help, gathered some of the methamphetamine that was there, and

then got “the hell out of there.”

Holland testified that, after the interview, he did not believe Armstrong’s

version of the events. Holland averred that, given the safety features and mechanics

of the gun used, it would have been impossible for Dunlap to have been shot in the

fashion that Armstrong described. Holland also said that during the interview,

Armstrong gave varying stories regarding where Hardy and Dunlap were when the

21 shooting occurred. During the interview, Armstrong stated several times that he “was

going . . . down for murder.”

Sergeant Timothy Lamkin of the Wise County Sheriff’s Office testified that he

examined Armstrong’s Expedition after it had been impounded. Lamkin said that he

found traces of blood in the vehicle. He also examined the .38 that Yates discovered

at the scene and found it odd that the barrel was clogged with dirt. Lamkin said that

the presence of dirt in the barrel of the gun indicated that the dirt had lodged in the

barrel after the gun had been fired. Lamkin stated that the lack of DNA present on

the gun indicated that the gun had been “wiped down” after having been fired.

Lamkin was able to confirm that the .38 that he tested was the same gun that fired the

shot that killed Dunlap.

Juan Rojas, a trace examiner for the Texas Department of Public Safety crime

lab in Austin, testified that based on his observations and testing, “[t]wo

characteristics of gunpowder residue particles were confirmed on the hands of . . .

Hardy.” According to Rojas, these particles were found on both Hardy’s left and

right hands. And Rojas said that the presence of these particles indicated that Hardy

had “fired the weapon or had been in the immediate proximity where [the] weapon

was fired [or she had] come into contact with . . . a surface that contained those type

of particles.” Using a demonstrative aid, the prosecutor asked if the shooter had been

in one general area in the house when the gun was fired and Hardy had been in a

nearby area, would that explain the presence of residue on her hands. Rojas replied,

22 Anything that’s in the path of where the bullet is going or where the majority of the blast that’s coming out of the barrel of a weapon is gonna be exposed. As far as the distance, it depends on the ammunition and the weapon. So if a weapon was fired in that direction that he just pointed out, then my initial analysis of this would be those areas are in the path, so it’s a possibility, yes.

Rojas said that no gunshot residue was found on Johnny and that “one characteristic

gunshot primer residue particle” was “confirmed” on Jackie.

G. The Verdict and the Punishment Phase

A jury found Armstrong guilty of murdering Dunlap. Armstrong elected to

have the trial court assess punishment. After the close of evidence at the punishment

phase, the trial court stated, “[S]ometimes judges hear closing arguments as to

punishment. I am -- I don’t wish to hear it today.” Neither Armstrong nor his

attorney objected, and neither Armstrong nor the State gave closing arguments. The

trial court then assessed Armstrong’s punishment at life in prison. This appeal

followed.

III. DISCUSSION

A. Sufficiency of the Evidence

In his fourth issue, Armstrong argues that the evidence is insufficient to

support his conviction. Specifically, Armstrong argues that Hardy confessed to three

people that she had shot Dunlap; the State failed to demonstrate he had a motive to

kill Dunlap; his flight was evidence of his methamphetamine-induced paranoia rather

than evidence of his guilt; and the State failed to prove he intended to kill Dunlap.

23 The State counters that the evidence supports the jury’s verdict that Armstrong was

the shooter; there was sufficient evidence regarding Armstrong’s motive; the evidence

of Armstrong’s attempts to evade the police indicated that he was conscious of his

own guilt; and the cumulative force of all the evidence established that Armstrong

intended to murder Dunlap. We agree with the State.

1. Standard of Review

When reviewing whether sufficient evidence supports a conviction, we look at

all of the evidence in the light most favorable to the jury’s verdict to determine

whether any rational factfinder could have found the crime’s essential elements

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 2787

(1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard

gives full play to the responsibility of the trier of fact to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Jenkins v. State, 493 S.W.3d

583, 599 (Tex. Crim. App. 2016).

The factfinder alone judges the evidence’s weight and credibility. See Tex. Code

Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622. Thus, when performing an

evidentiary-sufficiency review, we may not re-evaluate the evidence’s weight and

credibility and substitute our judgment for the factfinder’s. Queeman, 520 S.W.3d at

622. Instead, we determine whether the necessary inferences are reasonable based on

the evidence’s cumulative force when viewed in the light most favorable to the

24 verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); see Villa v. State,

514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The court conducting a sufficiency

review must not engage in a ‘divide and conquer’ strategy but must consider the

cumulative force of all the evidence.”). We must presume that the factfinder resolved

any conflicting inferences in favor of the verdict, and we must defer to that resolution.

Murray, 457 S.W.3d at 448–49.

To determine whether the State has met its Jackson burden to prove a

defendant’s guilt beyond a reasonable doubt, we compare the crime’s elements as

defined by the hypothetically correct jury charge to the evidence adduced at trial. See

Jenkins, 493 S.W.3d at 599; Crabtree v. State, 389 S.W.3d 820, 824 (Tex. Crim. App.

2012) (“The essential elements of the crime are determined by state law.”). Such a

charge is one that accurately sets out the law, is authorized by the indictment, does

not unnecessarily increase the State’s burden of proof or restrict the State’s theories of

liability, and adequately describes the particular offense for which the defendant was

tried. Jenkins, 493 S.W.3d at 599. The “law as authorized by the indictment” means

the statutory elements of the charged offense as modified by the factual details and

legal theories contained in the charging instrument. See id.; see also Rabb v. State,

434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When the State pleads a specific

element of a penal offense that has statutory alternatives for that element, the

sufficiency of the evidence will be measured by the element that was actually pleaded,

and not any alternative statutory elements.”).

25 The standard of review is the same for direct and circumstantial evidence cases;

circumstantial evidence is as probative as direct evidence in establishing guilt. Jenkins,

493 S.W.3d at 599. We must scrutinize circumstantial evidence of intent as we do

other elements of an offense. Laster v. State, 275 S.W.3d 512, 519–20 (Tex. Crim.

App. 2009). But when a record supports conflicting inferences, we “must presume—

even if it does not affirmatively appear in the record—that the trier of fact resolved

any such conflict in favor of the prosecution, and must defer to that resolution.”

Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).

2. Law of Murder

A person commits the offense of murder if he intentionally or knowingly

causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1). “A person

acts intentionally, or with intent, with respect to the nature of his conduct or to a

result of his conduct when it is his conscious objective or desire to engage in the

conduct or cause the result.” Id. § 6.03(a). “A person acts knowingly, or with

knowledge, with respect to a result of his conduct when he is aware that his conduct is

reasonably certain to cause the result.” Id. § 6.03(b).

3. Analysis

In this case, the evidence, when viewed in a light most favorable to the jury’s

verdict, sufficiently supports that Armstrong intentionally shot and killed Dunlap.

The evidence supporting Armstrong’s conviction falls into several categories

described below.

26 a. Hardy Witnessed the Shooting

Some of the most compelling evidence supporting that Armstrong murdered

Dunlap is that Hardy witnessed the shooting and told others what she had seen.

Hardy testified that Dunlap had offered her a ride to Sonic and that when she

returned from gathering her purse from the bedroom, she walked into the living

room, and Armstrong told her to shut the front door. When Hardy refused,

Armstrong shut the door. According to Hardy, Armstrong then pulled a gun from his

waistband, pointed it at Dunlap’s head, and pulled the trigger. Hardy’s testimony that

Armstrong was the shooter alone is sufficient to support the jury’s verdict. See Aguilar

v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971) (concluding that the testimony of a

single eyewitness is sufficient to support the jury’s verdict); see also Bundick v. State,

No. 14-12-00568-CR, 2013 WL 1352339, at *2 (Tex. App.—Houston [14th Dist.]

Apr. 4, 2013, no pet.) (mem. op., not designated for publication) (citing Aguilar for the

proposition that the testimony of one eyewitness is sufficient to support jury’s verdict

of murder).

Hardy’s version of the shooting is supported by the fact that in the immediate

aftermath of the shooting, multiple neighbors heard Hardy tell either Dunlap’s mother

or the police that Armstrong had shot Dunlap. One neighbor, Comer, recalled how

Hardy had told police that Armstrong had argued with Dunlap about giving her a ride

to Sonic and that was why Armstrong had shot Dunlap. Comer also said that Jackie

recalled how Hardy had stated that Armstrong shot Dunlap over an argument about

27 giving Hardy a ride to Sonic. Yates said that when he spoke with Hardy a second

time, she told him that Armstrong had shot Dunlap.

Armstrong argues that because Vidal, Johnny, and Jackie all testified that Hardy

had told them that Armstrong was not the shooter, and because Vidal, Johnny, and

Jackie all testified that they were sober at the time Hardy allegedly told them that

Armstrong was not the shooter, the evidence suggests that Hardy was in fact the

shooter and not Armstrong. But Hardy testified that she never told any of these

witnesses that she was the shooter or that Armstrong was not the shooter. And the

jury was free to believe Hardy’s testimony and to disbelieve the testimony of Vidal,

Johnny, and Jackie. See Tex. Code Crim. Proc. Ann. art. 38.04 (“The jury, in all cases,

is the exclusive judge of the facts proved, and of the weight to be given to the

testimony . . . .”); Queeman, 520 S.W.3d at 622.

b. Armstrong’s Flight

There is also substantial evidence in the record that Armstrong fled the murder

scene and attempted to evade discovery by police. Multiple law enforcement officers

and other witnesses testified how they were able to trace Armstrong’s path from the

Brush Street residence to the site where Armstrong crashed his Expedition. From

there, officers were able to track Armstrong’s path to the quarry shop where he stole

the boots, coveralls, and a hardhat. They were then able to track him to the

abandoned trailer and ultimately to the truck stop where he was found hiding under

the trailer of an 18-wheeler prior to being apprehended. And Armstrong told police

28 to shoot him when they apprehended him, and he told Yates multiple times that he

was “going down for murder.” A reasonable inference from these actions and

statements is that Armstrong knew he was guilty of murder and did not want to be

arrested, so this evidence of flight supports the jury’s verdict. See Burks v. State,

876 S.W.2d 877, 903 (Tex. Crim. App. 1994).

Armstrong argues that his flight is evidence that he is a paranoid person and

not an indication that he was guilty of Dunlap’s murder. The jury, however, was free

to interpret Armstrong’s fleeing actions as inferring his guilt of having shot Dunlap.

See id. (“Evidence of flight is admissible as a circumstance from which an inference of

guilt may be drawn.”). Citing Cawley v. State, Armstrong also argues that flight alone is

insufficient to sustain his conviction. 310 S.W.2d 340, 342 (1957). But as explained

above and below, there is more evidence of Armstrong’s guilt than just his flight.

c. Armstrong’s Varying and Implausible Stories

The jury was also presented with evidence that Armstrong gave varying stories

to different people about how Dunlap was shot. He told Bentley that Dunlap had

accidently shot himself, and he told Johnny and Holland that Dunlap had tossed him

(Armstrong) the gun and that it accidently fired and shot Dunlap. Moreover, Holland

determined during his interview of Armstrong that Armstrong’s description of where

each person was standing when Dunlap was shot was inconsistent and implausible.

Holland also said that Armstrong’s explanation that the gun went off accidently when

he caught it was inconsistent with the safety features on the gun. This evidence also

29 supports the jury’s verdict. See Lozano v. State, 359 S.W.3d 790, 814 (Tex. App.—Fort

Worth 2012, pet. ref’d) (“[H]is inconsistent statements and implausible explanations

indicate guilt, and that additional evidence supports the jury’s finding of guilt.”).

d. Armstrong’s Motive

Armstrong also argues that the State failed to demonstrate that he had a motive

to kill Dunlap. Although the State did not need to prove motive in order to convict

Armstrong of murder, evidence of motive is circumstantial evidence tending to show

guilt, and the State put on two theories of motive that are supported by the evidence.

See Clayton v. State, 235 S.W.3d 772, 781 (Tex. Crim. App. 2007) (recognizing that

although motive is not an element of murder, it may be a circumstance that is

indicative of guilt).

First, the State put on evidence that Armstrong was suspicious that Dunlap

might have been working for the police. Smith testified that there were rumors that

Dunlap had been released early because he had provided information on other people

to the police. Hardy recalled that she and Armstrong had discussed that Dunlap was

an undercover informant. And Jackie said that Armstrong had asked him whether

Dunlap was working for the police. The jury was free to make the reasonable

inference from this evidence that Armstrong was paranoid that Dunlap was working

for the police and that Armstrong shot Dunlap because of this belief.

Second, the record also indicates that Armstrong was jealous that Dunlap had

offered Hardy a ride to Sonic. Multiple witnesses testified that Armstrong was jealous

30 of Hardy being alone with other men. And multiple witnesses expressed that Hardy

had said that the reason that Armstrong shot Dunlap is because Armstrong had

gotten into an argument with Dunlap because he had offered to give Hardy a ride to

Sonic. The jury was entitled to see these motives as circumstantial evidence tending

to show Armstrong’s guilt. See id.

e. Armstrong’s Handling of the Gun after the Shooting

Armstrong also argues that the “investigation revealed no fingerprints on the

gun, no significant primer residue on any suspects’ hands, and no other objective

evidence to identify the shooter.” But the State put on evidence from which the jury

could have reasonably inferred that Armstrong had the gun used to shoot Dunlap

immediately after Dunlap had been shot.

Yates said that he found the gun on a love seat when he arrived at the scene.

Moreover, multiple witnesses testified that Armstrong had pursued Hardy and then

returned inside the house. Lamkin explained that he had found dirt clogged in the

barrel of the gun and that the dirt could only have gotten there after the gun had been

fired. A reasonable inference from this evidence is that Armstrong had the gun on

him as he pursued Hardy, that while outside Armstrong somehow caused dirt to be

lodged in the barrel of the gun, and that Armstrong then returned to the house and

left the gun inside.

Lamkin also stated that the gun had been “wiped down,” which explained why

no one’s fingerprints were found on the gun and is consistent with why there would

31 be dirt clogged in the barrel of the gun but no dirt found on the outside of the gun. A

reasonable inference from the fact that the gun had been wiped down is that

Armstrong was attempting to reduce the likelihood that he would be connected to the

gun, and thus, to Dunlap’s murder. See Hedrick v. State, 473 S.W.3d 824, 830 (Tex.

App.—Houston [14th Dist.] 2015, no pet.) (“Acts that are designed to reduce the

likelihood of prosecution, conviction, or incarceration for the offense on trial are

admissible . . . as showing ‘consciousness of guilt.’”). Armstrong’s handling of the

gun after Dunlap’s murder is additional evidence supporting the jury’s verdict.

f. Armstrong’s Intent

Despite Armstrong’s contention to the contrary, the cumulative force of all the

evidence presented to the jury supports that Armstrong intended to murder Dunlap.

In determining whether intent to kill was proven, the jury can use its collective

common sense and may apply common knowledge and experience. See Rodriguez v.

State, 90 S.W.3d 340, 355 (Tex. App.—El Paso 2001, pet. ref’d).

The jury may infer the intent to kill from any evidence that it believes proves

the existence of that intent. Brown, 122 S.W.3d at 800. Intent can be inferred from

such circumstantial evidence as the person’s acts, words, and conduct because “[o]ne’s

acts are generally reliable circumstantial evidence of one’s intent.” Laster v. State,

275 S.W.3d 512, 524 (Tex. Crim. App. 2009); Guevara v. State, 152 S.W.3d 45, 50 (Tex.

Crim. App. 2004). The jury may also infer intent to kill from the defendant’s use of a

deadly weapon, such as a gun, unless it would be unreasonable to infer that death or

32 serious bodily injury could result from the particular use of the weapon. Brown,

122 S.W.3d at 800–01; Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).

As explained above, the jury had before it evidence of Armstrong’s flight, his

varying and implausible stories about how Dunlap was shot, his motives for shooting

Dunlap, and his handling of the gun after Dunlap was shot, including the fact that the

gun had been wiped off after the shooting. These acts, words, and conduct are all

reliable, circumstantial evidence from which the jury could have inferred Armstrong’s

intent. See Laster, 275 S.W.3d at 524. Moreover, the jury heard testimony that

Armstrong shot Dunlap with a gun and was entitled to infer Armstrong’s intent to kill

Dunlap by the use of the deadly weapon. See Brown, 122 S.W.3d at 800–01; see also Ex

parte Poe, 751 S.W.2d 873, 875 (Tex. Crim. App. 1988) (“[A] handgun is a deadly

weapon per se . . . .”).

We conclude that a rational factfinder could have found that Armstrong’s

conscious objective was to cause Dunlap’s death or that Armstrong was aware that his

shooting Dunlap was certain to cause Dunlap’s death. See Tex. Penal Code Ann.

§§ 6.03(a), (b); Queeman, 520 S.W.3d at 622. We overrule Armstrong’s fourth issue.

B. No Closing Arguments at Punishment

In his first and second issues, Armstrong argues that the trial court reversibly

erred by not allowing counsel to make closing arguments during the punishment

phase at trial and that he was egregiously harmed by the trial court’s ruling. The State

33 argues that Armstrong has failed to preserve these issues for our review. We agree

with the State.

A trial court abuses its discretion by denying counsel the right to make a closing

argument. See Ruedas v. State, 586 S.W.2d 520, 524 (Tex. Crim. App. [Panel Op.]

1979). But this court has consistently held that to preserve error, counsel must have

notified the trial court of the desire to present closing argument, the trial court must

have refused that request, and counsel must have asserted a timely objection to the

trial court’s ruling denying closing argument. See Riddle v. State, No. 02-14-00180-CR,

2014 WL 5409550 at *7 (Tex. App.—Fort Worth Oct. 23, 2014, pet. ref’d) (mem. op.,

not designated for publication); Collum v. State, Nos. 02-13-00395-CR, 02-13-00396,

2014 WL 4243700, at *1 (Tex. App.—Fort Worth Aug. 28, 2014, no pet.) (mem. op.,

not designated for publication); Crane v. State, No. 02–08–00122–CR, 2009 WL

214195, at *1 (Tex. App.—Fort Worth Jan. 29, 2009, no pet.) (per curiam) (mem. op.,

not designated for publication); see also Tex. R. App. P. 33.1.

In this case, after the trial court announced that it would not entertain closing

arguments during the punishment phase of trial, neither Armstrong nor his attorney

lodged an objection. Thus, Armstrong has failed to preserve his first and second

issues for our review, and we overrule them. See Tex. R. App. P. 33.1.

34 C. Ineffective Assistance of Counsel

In his third issue, Armstrong argues that his counsel was ineffective for failing

to object to the trial court’s not allowing closing arguments at the punishment phase.

We conclude that the record does not support an ineffective-assistance-of-counsel

claim.

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 that trial 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). The record must affirmatively demonstrate that the claim has merit. Thompson

v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). An appellant’s 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).

When evaluating counsel’s effectiveness under the Strickland deficient-

performance prong, we review the totality of the representation and the particular

circumstances of the case to determine whether counsel provided reasonable

assistance 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; Nava,

415 S.W.3d at 307; Thompson, 9 S.W.3d at 813–14. Our review of counsel’s

35 representation is highly deferential, and we indulge a strong presumption that

counsel’s conduct was not deficient. Nava, 415 S.W.3d at 307–08. In fact, “the

defendant must overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.’’’ Strickland, 446 U.S. at

689, 104 S. Ct. at 2064 (quoting Michael v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158,

164 (1955)).

An appellate court may not infer ineffective assistance solely 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, 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. Given

the high bar for establishing ineffective assistance, direct appeal is usually inadequate

for raising an ineffective-assistance-of-counsel claim because the record typically does

not show counsel’s reasons for any alleged deficient performance. See Mansfield,

363 S.W.3d at 592–93; Thompson, 9 S.W.3d at 813–14. Accordingly, an application for

a writ of habeas corpus is often the more appropriate vehicle to raise ineffective-

assistance-of-counsel claims. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App.

2003).

36 In the present case, Armstrong did not file a motion for new trial predicated on

ineffective assistance of counsel; thus, the record is silent as to why trial counsel did

not attempt to present a closing argument or object to the absence of an opportunity

to do so at the punishment hearing. Therefore, under the presumption that trial

counsel’s actions could be considered sound trial strategy,4 we cannot conclude that

Armstrong has established that trial counsel’s performance was so deficient as to

deprive him of his constitutional right to effective assistance of counsel based on the

total record. See Strickland, 446 U.S. at 689, 104 S. Ct. at 2064–65. Because

Armstrong has not satisfied the first prong of Strickland, we need not consider any

arguments concerning potential harm that might have been caused by deficient

performance. Williams, 301 S.W.3d at 687. Accordingly, we overrule Armstrong’s

third issue.

IV. CONCLUSION

Having overruled all four of Armstrong’s issues on appeal, we affirm the trial

court’s judgment.

The State argues that there are several strategic reasons why an attorney would 4

choose not to object to the trial court stating it would not entertain closing arguments at punishment. They include that (1) defense counsel could have believed the trial court was typically more lenient at punishment, (2) defense counsel may have wanted to avoid the prosecutor’s effectiveness at closing arguments, (3) the State had considerably more facts to work with in closing than the defense, and (4) defense counsel may have wanted to let their witnesses’ testimony be the last thing the trial court heard before assessing punishment.

37 /s/ Dana Womack

Dana Womack Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: September 17, 2020