In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-21-00223-CR
KELLY DSHON BENNETT, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 161st District Court Ector County, Texas Trial Court No. B-20-0346-CR, Honorable Justin W. Low, Presiding
June 21, 2022 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.
Appellant Kelly Dshon Bennett appeals his conviction for the felony offense of
assault of a family/household member, after having been previously convicted of same.
An Ector County jury recommended punishment, the range of which was enhanced by
two prior convictions, of thirty years’ imprisonment and such was the sentence imposed. On appeal to this Court, appellant raised one issue, asserting that he received ineffective
assistance of counsel. We affirm.1
Background
Appellant and complaining witness, S.A., were married in February 2015. Shortly
thereafter, their relationship became one marred by substance abuse, a great deal of
fighting, and, ultimately, domestic violence. In November 2019, appellant pled guilty to
assault on a family member, S.A., a couple of months earlier. The record suggests that
drug and alcohol abuse and domestic violence continued to impact the couple. S.A. twice
sought refuge at a domestic violence shelter during their relationship. In December of
2019, S.A. rented an apartment on her own to escape what could be described as
escalating domestic discord. Two weeks later, however, appellant had persuaded her to
permit him to live with her again while he sought help for drug addiction. He was reluctant
in seeking help and she pushed him to go to rehab. The relationship resumed in its
turbulent and violent nature, becoming “more and more aggressive and violent” over their
short reconciliation.
In February 2020, following a trip to the store, S.A. returned to the apartment. As
she entered, appellant struck S.A. about the head with a fist closed around a bingo
dabber. She explained that appellant first struck her on the side of her head, hitting her
ear, and as she attempted to evade him, he began striking her on the back of her head.
She picked up an air pump in the living room and hit him on the arm with it and then called
1 Because this appeal was transferred from the Eleventh Court of Appeals, we are obligated to apply its precedent in the event of a conflict between the precedents of that court and this Court. See TEX. R. APP. P. 41.3.
2 911. She admitted that both she and appellant were under the influence of
methamphetamine at the time.
Responding officers quickly arrived at the scene and found it consistent with her
account of the incident, noting the presence of a bingo dabber and redness on S.A.’s ear.
S.A. described the very angry appellant as having suddenly changed his demeanor to a
much calmer state upon the officers’ arrival, as was his pattern when dealing with officers
responding to their domestic altercations. S.A. was clear in her testimony that she did
not want appellant to be prosecuted and, instead, wanted him to get help for substance
abuse.
Despite S.A.’s efforts, appellant was tried on charges of assault on a family
member after having been previously convicted of assault on a family member. At trial,
the jury heard S.A.’s testimony and also considered a responding officer’s account and
expert testimony concerning the common patterns of behavior in domestic violence
situations. Ultimately, the jury found appellant guilty of the charged offense and
recommended a punishment, enhanced by prior felony convictions, of thirty years’
imprisonment. Appellant was sentenced accordingly.
On appeal, he maintains that defense counsel rendered ineffective assistance
when he failed to object to the State’s odd reference during closing argument in the
guilt/innocence phase to not being able to address appellant having had a prior
conviction. That is, in closing, the prosecutor said: “We are not allowed to talk about
punishment, so we can’t. We can’t discuss his prior, other than this one, so we can’t.”
Because defense counsel failed to object to the comment and seek a mistrial based on
the improper jury argument, he purportedly was ineffective. We overrule the issue.
3 Law and Application
The applicable standard of review is that discussed in Briggs v. State, 560 S.W.3d
176 (Tex. Crim. App. 2018). It is one of abused discretion requiring us to view the
evidence in a light most favorable to the ruling. Id. at 183–84. Only if no reasonable view
of the record or legal theory supports the decision is it an instance of abused discretion.
Id. at 184.
Additionally, to secure relief when pursuing an allegation of ineffective assistance,
the defendant must show deficient performance coupled with a reasonable probability
that the outcome would have been different but for the deficiency. Burch v. State, 541
S.W.3d 816, 820 (Tex. Crim. App. 2017). Performance is deficient when falling below an
objective standard of reasonableness given the circumstances of the case. Strickland v.
Washington, 466 U.S. 668, 687–88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see Edgar
v. State, No. 11-20-00025-CR, 2022 Tex. App. LEXIS 982, at *9 (Tex. App.—Eastland
Feb. 10, 2022, no pet.) (mem. op., not designated for publication). Furthermore, we must
be highly deferential to counsel’s decisions to avoid the deleterious effects of hindsight.
Scott v. State, No. 07-20-00179-CR, 2020 Tex. App. LEXIS 8845, at *2 (Tex. App.—
Amarillo Nov. 13, 2020, no pet.) (mem. op., not designated for publication). That is, we
should not second-guess, through hindsight, the strategy of counsel at trial or simply
conclude that counsel was deficient because another attorney may have pursued a
different course. Id.
Nor may we speculate; rather, the record must affirmatively demonstrate trial
counsel’s ineffectiveness. See Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App.
2017). If there is no record of trial counsel’s explanation for the conduct in question,
4 reviewing courts commonly “assume a strategic motive if any can be imagined and find
counsel’s performance deficient only if the conduct was so outrageous that no competent
attorney would have engaged in it.” Okonkwo v. State, 398 S.W.3d 689, 693 (Tex. Crim.
App. 2013).
Here, the record contains no evidence of counsel’s reasons for not objecting to the
State’s remarks. Further, we are unable to say that no competent attorney would have
failed to object. It could well be that counsel’s decision to forgo an objection was a
strategical decision. Indeed, courts have recognized that withholding objection to avoid
garnering more attention on a matter can be reasonable trial strategy. See, e.g., Garcia
v. State, 887 S.W.2d 862, 881 (Tex. Crim. App. 1994) (en banc) (acknowledging that the
decision not to request a limiting instruction to avoid drawing more attention to
incriminating evidence falls within the scope of reasonable trial strategy); Scott, 2020 Tex.
App. LEXIS 8845, at *6 (noting that withholding an objection in light of a “rather oblique”
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-21-00223-CR
KELLY DSHON BENNETT, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 161st District Court Ector County, Texas Trial Court No. B-20-0346-CR, Honorable Justin W. Low, Presiding
June 21, 2022 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.
Appellant Kelly Dshon Bennett appeals his conviction for the felony offense of
assault of a family/household member, after having been previously convicted of same.
An Ector County jury recommended punishment, the range of which was enhanced by
two prior convictions, of thirty years’ imprisonment and such was the sentence imposed. On appeal to this Court, appellant raised one issue, asserting that he received ineffective
assistance of counsel. We affirm.1
Background
Appellant and complaining witness, S.A., were married in February 2015. Shortly
thereafter, their relationship became one marred by substance abuse, a great deal of
fighting, and, ultimately, domestic violence. In November 2019, appellant pled guilty to
assault on a family member, S.A., a couple of months earlier. The record suggests that
drug and alcohol abuse and domestic violence continued to impact the couple. S.A. twice
sought refuge at a domestic violence shelter during their relationship. In December of
2019, S.A. rented an apartment on her own to escape what could be described as
escalating domestic discord. Two weeks later, however, appellant had persuaded her to
permit him to live with her again while he sought help for drug addiction. He was reluctant
in seeking help and she pushed him to go to rehab. The relationship resumed in its
turbulent and violent nature, becoming “more and more aggressive and violent” over their
short reconciliation.
In February 2020, following a trip to the store, S.A. returned to the apartment. As
she entered, appellant struck S.A. about the head with a fist closed around a bingo
dabber. She explained that appellant first struck her on the side of her head, hitting her
ear, and as she attempted to evade him, he began striking her on the back of her head.
She picked up an air pump in the living room and hit him on the arm with it and then called
1 Because this appeal was transferred from the Eleventh Court of Appeals, we are obligated to apply its precedent in the event of a conflict between the precedents of that court and this Court. See TEX. R. APP. P. 41.3.
2 911. She admitted that both she and appellant were under the influence of
methamphetamine at the time.
Responding officers quickly arrived at the scene and found it consistent with her
account of the incident, noting the presence of a bingo dabber and redness on S.A.’s ear.
S.A. described the very angry appellant as having suddenly changed his demeanor to a
much calmer state upon the officers’ arrival, as was his pattern when dealing with officers
responding to their domestic altercations. S.A. was clear in her testimony that she did
not want appellant to be prosecuted and, instead, wanted him to get help for substance
abuse.
Despite S.A.’s efforts, appellant was tried on charges of assault on a family
member after having been previously convicted of assault on a family member. At trial,
the jury heard S.A.’s testimony and also considered a responding officer’s account and
expert testimony concerning the common patterns of behavior in domestic violence
situations. Ultimately, the jury found appellant guilty of the charged offense and
recommended a punishment, enhanced by prior felony convictions, of thirty years’
imprisonment. Appellant was sentenced accordingly.
On appeal, he maintains that defense counsel rendered ineffective assistance
when he failed to object to the State’s odd reference during closing argument in the
guilt/innocence phase to not being able to address appellant having had a prior
conviction. That is, in closing, the prosecutor said: “We are not allowed to talk about
punishment, so we can’t. We can’t discuss his prior, other than this one, so we can’t.”
Because defense counsel failed to object to the comment and seek a mistrial based on
the improper jury argument, he purportedly was ineffective. We overrule the issue.
3 Law and Application
The applicable standard of review is that discussed in Briggs v. State, 560 S.W.3d
176 (Tex. Crim. App. 2018). It is one of abused discretion requiring us to view the
evidence in a light most favorable to the ruling. Id. at 183–84. Only if no reasonable view
of the record or legal theory supports the decision is it an instance of abused discretion.
Id. at 184.
Additionally, to secure relief when pursuing an allegation of ineffective assistance,
the defendant must show deficient performance coupled with a reasonable probability
that the outcome would have been different but for the deficiency. Burch v. State, 541
S.W.3d 816, 820 (Tex. Crim. App. 2017). Performance is deficient when falling below an
objective standard of reasonableness given the circumstances of the case. Strickland v.
Washington, 466 U.S. 668, 687–88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see Edgar
v. State, No. 11-20-00025-CR, 2022 Tex. App. LEXIS 982, at *9 (Tex. App.—Eastland
Feb. 10, 2022, no pet.) (mem. op., not designated for publication). Furthermore, we must
be highly deferential to counsel’s decisions to avoid the deleterious effects of hindsight.
Scott v. State, No. 07-20-00179-CR, 2020 Tex. App. LEXIS 8845, at *2 (Tex. App.—
Amarillo Nov. 13, 2020, no pet.) (mem. op., not designated for publication). That is, we
should not second-guess, through hindsight, the strategy of counsel at trial or simply
conclude that counsel was deficient because another attorney may have pursued a
different course. Id.
Nor may we speculate; rather, the record must affirmatively demonstrate trial
counsel’s ineffectiveness. See Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App.
2017). If there is no record of trial counsel’s explanation for the conduct in question,
4 reviewing courts commonly “assume a strategic motive if any can be imagined and find
counsel’s performance deficient only if the conduct was so outrageous that no competent
attorney would have engaged in it.” Okonkwo v. State, 398 S.W.3d 689, 693 (Tex. Crim.
App. 2013).
Here, the record contains no evidence of counsel’s reasons for not objecting to the
State’s remarks. Further, we are unable to say that no competent attorney would have
failed to object. It could well be that counsel’s decision to forgo an objection was a
strategical decision. Indeed, courts have recognized that withholding objection to avoid
garnering more attention on a matter can be reasonable trial strategy. See, e.g., Garcia
v. State, 887 S.W.2d 862, 881 (Tex. Crim. App. 1994) (en banc) (acknowledging that the
decision not to request a limiting instruction to avoid drawing more attention to
incriminating evidence falls within the scope of reasonable trial strategy); Scott, 2020 Tex.
App. LEXIS 8845, at *6 (noting that withholding an objection in light of a “rather oblique”
and likely “innocuous” allusion to a polygraph examination could be a strategical decision
to avoid drawing attention to the reference).
We further note that appellant’s development of the second prong consisted of
uttering mere conclusions without analysis. He merely tells us “[t]hat [the] statement
immediately put a prejudicial doubt in the minds of the jurors as to the innocence of
Appellant[].” The existence of “prejudicial doubt,” if any, is not the test for harm. Rather,
the complaint must illustrate a reasonable probability that the outcome would have
differed but for the purported deficiency. Bellar v. State, No. 07-18-00059-CR, 2018 Tex.
App. LEXIS 9383, at *4 (Tex. App.—Amarillo Nov. 16, 2018, pet. ref’d) (mem. op., not
designated for publication). That was not done. The jury already having evidence of his
5 recent assault upon a family member and his prior conviction for the same crime
legitimately before it, we cannot say there existed a reasonable probability that either the
verdict or sentence would have differed.
Given the circumstances of this case, we conclude that appellant did not satisfy
either prong of the relevant test, overrule his sole issue on appeal, and affirm the trial
court’s judgment.
Brian Quinn Chief Justice
Do not publish.