NUMBER 13-23-00374-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
LAWRENCE HERALD, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 329TH DISTRICT COURT OF WHARTON COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Silva Memorandum Opinion by Justice Silva
A jury found appellant Lawrence Herald guilty of possession of four grams or more
but less than 200 grams of fentanyl with intent to deliver, a first-degree felony. See TEX.
HEALTH & SAFETY CODE ANN. § 481.112(d). The jury found the State’s enhancement
allegation true and assessed punishment at life imprisonment. See TEX. PENAL CODE ANN. § 12.42(c). In what we construe as a single issue, appellant argues that he received
ineffective assistance of counsel in violation of the Sixth Amendment because his trial
counsel: (1) failed to convey a plea bargain offer; (2) failed to present mitigating evidence
during the punishment phase; and (3) was “constructively absent from material phases of
trial due to his incomprehensible speech.” We affirm as modified.
I. BACKGROUND
At the conclusion of a pretrial hearing on July 24, 2023, a week before trial, the
following exchange occurred in open court in the presence of appellant and his trial
counsel.
[STATE]: While we’re still on the record, I think we made it clear previously at the suppression hearing. But the probation offer that was offered at one point was withdrawn at the time of the suppression hearing.[ 1]
THE COURT: All right. I know.
Okay. So we got a jury coming on Monday. I just heard the State say that the probation offer is no longer on the table. But I encourage you to talk. If y’all can resolve this between now and Monday, I’m always happy to schedule a plea hearing.
The following Monday, the State again sought to make a record of the prior plea
bargain offer at a bench conference in the presence of appellant and his trial counsel
before the commencement of voir dire:
[STATE]: Yes, Your Honor. First of all, I believe it was put on the record at pretrial, but I wanted to verify [that a]t the suppression hearing . . . the defendant had been offered a probation matter on this case. That was turned down and that offer was pulled at the suppression hearing. The defendant and his attorney
1 There is no evidence in the record of any discussion regarding the State’s plea bargain at the
suppression hearing.
2 were advised that if the State proves the one enhancement, that he is looking at a minimum of fifteen years, and that was declined by defendant and his attorney.
THE COURT: So the indictment contains [a]n enhancement paragraph alleging a prior conviction?
....
Okay. So if they find the defendant guilty, and they find the enhancement paragraph to be true, the minim[um] is fifteen. So there’s no probation.
[STATE]: That’s absolutely correct, Your Honor.
THE COURT: Okay. We just want to make sure you understand that.
[APPELLANT]: Okay. I really don’t. Because that part about the probation and all that turned down, who turned that down?
THE COURT: Well, you did.
[APPELLANT]: No, I didn’t. Ain’t nobody offered me no probation. Only probation I get is a warrant probation.
THE COURT: We’re going to take a break in a minute, and I want you to go talk to your lawyer.
[APPELLANT]: Okay.
After a short break, the court resumed questioning about the prior plea offer.
Appellant again denied that he was made aware of the State’s plea offer, while the State
and trial counsel both maintained that it had been communicated and rejected. When the
court addressed trial counsel about the offer, trial counsel responded, “I remember
conveying an offer” and began explaining to appellant, “The State wants you to plea to
the drug, which you call drug manufacturing, and you said no. And they will give you—”
appellant interjected, “I didn’t say no to nobody. Nobody []ever asked me that.”
3 After that exchange, trial counsel asked the appellant directly, “Do you want to take
probation for six years?” Appellant responded that he would not take it and denied the
allegations of the offense, stating “Six-year probation for something I didn’t—I get these
pills and stuff from my doctor. I get them legally. And the policeman got on the witness
stand, he lie a whole lot of lies.” The court responded, “And that’s what we’re about to
have a trial over. All that.” The court further stated to appellant, “Okay. You’re going [to]
have a chance to tell your story.” The State noted that, in any event, appellant would not
be able to go forward with the plea “because he’s clearly indicated he’s not guilty. He’s
not willing to plead guilty to this.” In response to further questioning by the court, the State
and trial counsel both maintained that the offer was communicated and rejected by
appellant, and the matter proceeded to trial.
The jury found appellant guilty of the charged offense. During the punishment
phase, the State called one witness, Deputy Constable Mark Somer. Deputy Somer
testified to the identification of appellant’s fingerprints in his penitentiary packet to verify
his prior criminal history for enhancement purposes. Trial counsel called no witnesses
and offered no evidence. 2 The jury assessed appellant’s punishment at life in prison.
Appellant filed a motion for new trial, which was overruled by operation of law, and this
appeal ensued.
2 The record reflects that the appellant failed to appear after the second day of trial and was found
guilty in absentia. He likewise did not appear for the punishment phase of trial.
4 II. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
A. Standard of Review and Applicable Law
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. CONST.
amend. VI. “[A] person claiming ineffective assistance of counsel must show that
(1) counsel’s performance was deficient, and (2) the deficient performance prejudiced the
defense.” Ex parte Covarrubias, 665 S.W.3d 605, 609 (Tex. Crim. App. 2023) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)).
To satisfy the first prong, deficiency is established by “showing that counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms, considering the facts of the case viewed from counsel’s perspective
at the time of the representation.” Ex parte Garza, 620 S.W.3d 801, 808–09 (Tex. Crim.
App. 2021). The Texas Court of Criminal Appeals has routinely held that “claims of
ineffective assistance of counsel are generally not successful on direct appeal and are
more appropriately urged in a hearing on an application for a writ of habeas corpus.”
Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). “On direct appeal, the record
is usually inadequately developed and ‘cannot adequately reflect the failings of trial
counsel’ for an appellate court ‘to fairly evaluate the merits of such a serious allegation.’”
Id. (quoting Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)). In the absence of
an explanation in the record for why counsel’s conduct allegedly fell below this objective
standard, we will “assume a strategic motivation if any can possibly be imagined” and not
conclude that the challenged conduct constituted deficient performance unless the
conduct was “so outrageous that no competent attorney would have engaged in it.” Garcia
5 v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); see Ex parte Westerman, 570
S.W.3d 731, 731 n. 1 (Tex. Crim. App. 2019).
The appellant bears the burden to prove ineffective assistance of counsel by a
preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999); Perez v. State, 689 S.W.3d 369, 381 (Tex. App.—Corpus Christi–Edinburg 2024,
no pet.). We employ a strong presumption that counsel’s conduct fell within the wide
range of reasonable, professional assistance and that it was motivated by a sound trial
strategy. Strickland, 466 U.S. at 689; Hart v. State, 667 S.W.3d 774, 781 (Tex. Crim. App.
2023). We consider “the reasonableness of counsel’s actions at the time, rather than
viewing such actions through the benefit of hindsight.” Hart, 667 S.W.3d at 782.
To establish prejudice under the second prong, appellant must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. “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). Accordingly, failure to
make a showing under either Strickland prong defeats a claim for ineffective assistance.
Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010) (citing Thompson, 9 S.W.3d
at 813).
B. Discussion
1. Failure to Convey Plea Offer
By his first sub-issue, appellant argues that his trial counsel was ineffective based
on counsel’s alleged failure to convey the State’s plea offer, and that he was not properly
6 advised by counsel regarding the potential consequences of proceeding to trial. “[A]s a
general rule, defense counsel has the duty to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may be favorable to the
accused.” Missouri v. Frye, 566 U.S. 134, 145 (2012). To establish prejudice in a claim of
ineffective assistance of counsel where an appellant is not made aware of a plea-bargain
offer, or rejects a plea-bargain offer because of bad legal advice, an appellant must
demonstrate a reasonable probability that: “(1) he would have accepted the earlier offer
if counsel had not given ineffective assistance; (2) the prosecution would not have
withdrawn the offer; and (3) the trial court would not have refused to accept the plea
bargain.” Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013).
With regard to his contention that trial counsel failed to convey the State’s plea
offer, we conclude that appellant failed to meet his burden. Appellant stated in open court
that his trial counsel had not conveyed the plea bargain offer. However, his counsel stated
that he remembered conveying an offer. The trial court questioned both extensively on
this matter and we defer to the trial court’s implied credibility finding in favor of trial
counsel. See Manzi v. State, 88 S.W.3d 240, 243–44 (Tex. Crim. App. 2002) (discussing
Guzman v. State, 955 S.W.2d 85, 87–89 (Tex. Crim. App. 1997)). However, even if trial
counsel failed to convey the State’s earlier plea bargain offer to appellant, appellant has
failed to demonstrate any prejudice. Nothing in the record establishes a reasonable
probability that appellant would have accepted the plea bargain offer. Rather, appellant
rejected the offer in open court immediately prior to the commencement of trial. Thus, we
cannot conclude, on this record, that appellant met his burden to show prejudice under
Strickland. See Tucker v. State, 456 S.W.3d 194, 216–17 (Tex. App.—San Antonio 2014,
7 pet. ref’d) (holding that Strickland’s prejudice prong was not met where trial counsel
represented that “appellant would not have accepted any offer that included jail time”).
Appellant also alleges under this sub-issue that, owing to the ineffective assistance
of his trial counsel, he was unaware that he would not be eligible for probation and would
face at least a fifteen-year minimum term in prison if the jury found the enhancement to
be true. He also suggests that he was not properly advised by counsel of his chances of
prevailing at trial and that, had he been, he would have accepted the probation offer.
There is no evidence in the record supporting appellant’s contentions 3 and we may not
presume deficient performance based on conjecture, nor can we presume that counsel’s
performance was deficient based upon a silent record. See Scheanette v. State, 144
S.W.3d 503, 510 (Tex. Crim. App. 2004); Johnson, 624 S.W.3d at 586.
Appellant has failed to make the requisite showing of either deficient performance
or prejudice under Strickland, therefore defeating his claim for ineffective assistance on
this sub-issue. We overrule appellant’s first sub-issue.
2. Failure to Present Mitigating Evidence
In his second sub-issue, appellant asserts that trial counsel was ineffective by
failing to present mitigating evidence during the punishment phase of trial. Appellant notes
that trial counsel presented no evidence of any sort during the punishment phase of trial
despite having filed with the trial court a notice of filing appellant’s medical records with a
3 We note that although not required to by law, see TEX. CODE CRIM. PRO. ANN. art. 26.13 (requiring
judge to provide certain admonishments to defendant before a plea of guilty or nolo contendere); Williams v. State, 477 S.W.2d 607, 608 (Tex. Crim. App. 1972) (holding that judge has no duty to provide admonishments when defendant pleads not guilty), the trial court advised appellant at the bench conference prior to voir dire of both the fifteen-year minimum and the unavailability of probation should the jury find the enhancement to be true. Despite this warning, appellant subsequently declined to accept the six-year probation offer and insisted on going to trial.
8 business records affidavit, 4 as well as an affidavit from Misty Renee Garcia, who claimed
to be appellant’s stepdaughter, regarding ownership of some items seized by police.
Appellant contends that the failure to introduce mitigating evidence—such as the
information contained in the medical records and his stepdaughter’s affidavit—at the
punishment phase constitutes deficient performance and that this Court should presume
harm.
At the outset of our analysis, we note that a hearing was not conducted on the
motion for new trial and that appellant has not complained on appeal of the lack of such
a hearing. As a consequence, we may not consider either the medical records or Garcia’s
affidavit. 5 See Stephenson v. State, 494 S.W.2d 900, 909–10 (Tex. Crim. App. 1973) (“An
affidavit attached to the motion [for new trial] is but a pleading that authorizes the
introduction of supporting evidence. It is not evidence in itself; and in order to constitute
evidence it needs to be introduced as such at the hearing on the motion, which was not
done in this case.” (collecting cases)); Jackson v. State, 139 S.W.3d 7, 20 (Tex. App.—
Fort Worth 2004, pet. ref’d) (“To constitute evidence, the affidavit must be introduced as
evidence at the hearing on the motion [for new trial],” and holding that trial court may not
take judicial notice of factual contents of documents filed with the court).
Additionally, appellant did not offer evidence regarding Garcia’s availability to
testify or that her testimony would have benefited appellant. See Ex parte Ramirez, 280
4 See TEX. R. EVID. 902(10) (providing that certain business records are self-authenticating and
may be admitted into evidence without extrinsic evidence of authenticity if the requirements of the rule are met). 5 Appellant’s notice of filing of medical records with business records affidavit was filed with the trial
court by trial counsel but were not attached to his motion for new trial. Garcia’s affidavit was attached to appellant’s motion for new trial. Neither was introduced into evidence in open court for the trial court’s determination of the motion for new trial.
9 S.W.3d 848, 853 (Tex. Crim. App. 2007) (holding that, to obtain relief on an ineffective
assistance of counsel claim based on an uncalled witness, the applicant “must show that
[the witness] had been available to testify and that his testimony would have been of some
benefit to the defense”) (quoting Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim. App.
2004)); King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (declining to find counsel
ineffective for failing to call witnesses during punishment where appellant did not
demonstrate that the witnesses were available or that he would benefit from their
testimony).
As the unoffered evidence is not properly before us, we take no position on whether
it was mitigating, but we note that the failure to present mitigating evidence is not per se
defective performance. See Ex parte Woods, 176 S.W.3d 224, 226 (Tex. Crim. App. 2005)
(stating that “Strickland does not require defense counsel to investigate each and every
potential lead, or present any mitigating evidence at all”). In this case, as in many cases,
“the record on direct appeal is undeveloped and cannot adequately reflect the motives
behind trial counsel’s actions.” Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim.
App. 2003) (quoting Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).
Even so, trial counsel had no opportunity to explain his conduct. We also note that
he performed in the absence of appellant, who failed to appear for the last day of the guilt-
innocence phase and for the entirety of the punishment phase. Even if we could consider
any of the cited evidence, we can imagine valid strategies exist supporting trial counsel’s
actions at the punishment phase in not presenting such evidence, especially in light of
appellant’s absence from trial. We are required to indulge in the strong presumption that
trial counsel’s performance falls within the wide range of reasonable professional
10 assistance. Strickland, 466 U.S. at 689. Based upon the limited record before us, we
cannot conclude that appellant has established that trial counsel’s performance fell below
an objective standard of reasonableness. See Hart, 667 S.W.3d at 782–83 (refusing to
find ineffective assistance where counsel had no opportunity to explain his actions, and
assuming strategic motive).
Appellant has not satisfied the first prong of Strickland, thereby defeating his
ineffectiveness claim. See Strickland, 466 U.S. at 700. We overrule appellant’s second
sub-issue.
3. Constructive Absence
In his last sub-issue, appellant contends that his right to effective assistance of
counsel was violated because his trial counsel was “constructively absent” from material
phases of trial due to counsel’s “incomprehensible speech.” Specifically, appellant argues
that trial counsel was ineffective due to being “unable to functionally communicate with
the jury” because trial counsel spoke with a “heavy accent,” “appear[ed] not to be fluent
in English,” and could not have “basic communication with the parties involved in [the]
trial proceeding.” Appellant relies on two portions of the record in support of his
contention.
Appellant first cites to an affidavit attached to his motion for new trial that contains
factual allegations outside the trial record—specifically, the impressions of a non-party
attorney who claimed that she “observe[d] some of the proceedings” but “could not
understand most of what [trial counsel] actually said” because of his “extremely thick
accent.” See TEX. R. APP. P. 21.2 (“A motion for new trial is a prerequisite to presenting a
point of error on appeal only when necessary to adduce facts not in the record.”).
11 However, we cannot consider that affidavit because it was not introduced into evidence
during a hearing on the motion. See Stephenson, 494 S.W.2d at 909–10; Jackson, 139
S.W.3d at 20. As noted above, no such hearing was held, and appellant has not
complained about the lack of a hearing on appeal. Thus, we may not consider the cited
affidavit.
Appellant’s remaining citation to the record is an exchange between trial counsel
and a witness during a hearing on appellant’s motion to suppress held several months
before trial. 6 This exchange was neither at trial nor in the presence of the jury and provides
no evidence that the jury could not understand appellant’s counsel at trial.
Based on the record before us, appellant has not established his claim of
ineffective assistance of counsel based on trial counsel’s alleged “incomprehensible
speech.” We overrule his third sub-issue.
III. MODIFICATION OF JUDGMENT
An intermediate appellate court may reform a trial court’s judgment to make the
record speak the truth when it has the necessary data and information to do so. See TEX.
R. APP. P. 43.2(b) (authorizing appellate courts to modify the judgment and affirm it as
modified); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (“[A]n appellate
court has authority to reform a judgment to include an affirmative finding to make the
record speak the truth.”); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993). The
judgment of conviction erroneously states that the “Date Sentence Imposed” was August
3, 2023. However, the sentence was imposed in open court on August 15, 2023. We
6 The trial court heard appellant’s motion to suppress on March 13, 2023. The jury was empaneled
and sworn on July 31, 2023.
12 modify the trial court’s judgment to instead list the following under “Date Sentence
Imposed”: “August 15, 2023.” See TEX. R. APP. P. 43.2(b); French, 830 S.W.2d at 609;
Bigley, 865 S.W.2d at 27.
IV. CONCLUSION
We affirm the trial court’s judgment as modified.
CLARISSA SILVA Justice
Do not publish. TEX. R. APP. P. 47.2 (b).
Delivered and filed on the 12th day of December, 2024.