In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-24-00179-CR
RUSSELL DALE RAMSEY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 110th District Court Briscoe County, Texas Trial Court No. 1247, Honorable William P. Smith, Presiding
January 27, 2025 MEMORANDUM OPINION Before PARKER and DOSS and YARBROUGH, JJ.
Appellant, Russell Dale Ramsey, was convicted by a jury of aggravated assault
with a deadly weapon.1 The jury assessed his punishment at fifteen years’ incarceration
and a $5,000 fine. By his sole issue on appeal, Appellant contends that he was denied
the effective assistance of counsel during punishment because counsel failed to present
1 See TEX. PENAL CODE ANN. § 22.02(a). any mitigating evidence even though the record shows that such mitigation evidence
existed. We affirm the trial court’s judgment.
BACKGROUND
Because Appellant’s sole issue challenges the effectiveness of his appointed
counsel at punishment, we will limit our discussion of the facts relevant to that issue to
our analysis below.
After a jury found Appellant guilty of one count of aggravated assault with a deadly
weapon, the trial proceeded to punishment. During punishment, the State retendered all
evidence it offered during the guilt-innocence portion of the trial. Defense counsel,
however, did not offer any mitigation evidence. The jury returned a sentencing verdict of
fifteen years’ incarceration and a $5,000 fine.
RELEVANT LAW
The Sixth Amendment guarantees a criminal defendant the effective assistance of
counsel. U.S. CONST. amend. VI.; Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App.
2017). To establish a claim based on ineffective assistance, an appellant must show that
(1) his counsel’s representation fell below the objective standard of reasonableness, and
(2) there is a reasonable probability that but for counsel’s deficient performance, the result
of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Nava v. State, 415 S.W.3d 289, 307−08
(Tex. Crim. App. 2013). In other words, an appellant bears the burden to show that his
trial counsel’s performance was deficient and that he was prejudiced by the deficiency.
State v. Gutierrez, 541 S.W.3d 91, 98 (Tex. Crim. App. 2017). A failure to make a showing 2 under either Strickland prong defeats a claim for ineffective assistance. Rylander v. State,
101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (en banc). Both prongs need not be
examined on review if one cannot be met. Turner v. State, 528 S.W.3d 569, 577 (Tex.
App.—Texarkana 2016, no pet.) (citing Strickland, 466 U.S. at 697).
In reviewing a claim of ineffective assistance, we must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance. Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013). To rebut
this presumption, any allegation of ineffectiveness must be firmly founded in the record,
and the record must affirmatively demonstrate ineffectiveness. Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999). “It is not sufficient that the appellant show, with
the benefit of hindsight, that his counsel’s actions or omissions during trial were merely
of questionable competence.” Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App.
2007).
In most cases, a direct appeal is an inadequate vehicle for raising a claim of
ineffective assistance because the record is generally undeveloped and cannot
adequately reflect counsel’s trial strategy. Rylander, 101 S.W.3d at 110–11. When
counsel is not afforded an opportunity to explain his strategy before being denounced as
ineffective, an appellate court should not find deficient performance unless counsel’s
conduct was “so outrageous that no competent attorney would have engaged in it.”
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Therefore, when the
record is silent on counsel’s trial strategy, we will assume that counsel had a strategy if
any reasonable sound strategic motivation can be imagined. Garcia v. State, 57 S.W.3d
436, 440 (Tex. Crim. App. 2001). 3 APPLICATION
By his sole issue, Appellant contends that he received ineffective assistance of
counsel during the punishment phase of trial2 because counsel failed to present any
mitigation evidence even though the record shows that such evidence existed.
Specifically, Appellant contends that there was evidence that he no longer used
methamphetamine, was actively co-parenting and involved in his daughter’s life, and had
a positive relationship with his mother. Appellant did not move for a new trial on the basis
of ineffective assistance of counsel and the record does not reflect any reasons why trial
counsel did not offer this or other evidence during punishment.
The Court of Criminal Appeals has repeatedly observed that a record on direct
appeal is generally insufficient to show that counsel’s representation was so deficient as
to meet the Strickland test. See Hart v. State, 667 S.W.3d 774, 782 (Tex. Crim. App.
2023); Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011); Rylander, 101
S.W.3d at 110; Bone v. State, 77 S.W.3d 828, 833 & n.13 (Tex. Crim. App. 2002). The
present record does not provide Appellant’s counsel the opportunity to “defend, explain,
or otherwise justify his conduct.” Garza v. State, No. 07-13-00137-CR, 2014 Tex. App.
LEXIS 415, at *5 (Tex. App.—Amarillo Jan. 14, 2014, no pet.) (mem. op., not designated
for publication). When, as here, the record regarding counsel’s strategy has been
insufficiently developed, we conclude Appellant has failed to overcome the presumption
that counsel’s decisions were the product of sound trial strategy. See Freeman v. State,
2 Appellant does not challenge the effectiveness of his representation during the guilt-innocence
portion of trial.
4 125 S.W.3d 505, 506–07 (Tex. Crim. App. 2003). The record before us does not
affirmatively show, by a preponderance of evidence, that counsel’s performance was
sufficiently deficient or that any alleged deficiencies resulted in the requisite level of
prejudice to Appellant’s case such that we can conclude the trial below did not produce a
just result.3 As such, we overrule Appellant’s sole issue.
In light of Appellant’s contention that the record from the trial on guilt-innocence
establishes that trial counsel’s representation fell below the objective standard of
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-24-00179-CR
RUSSELL DALE RAMSEY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 110th District Court Briscoe County, Texas Trial Court No. 1247, Honorable William P. Smith, Presiding
January 27, 2025 MEMORANDUM OPINION Before PARKER and DOSS and YARBROUGH, JJ.
Appellant, Russell Dale Ramsey, was convicted by a jury of aggravated assault
with a deadly weapon.1 The jury assessed his punishment at fifteen years’ incarceration
and a $5,000 fine. By his sole issue on appeal, Appellant contends that he was denied
the effective assistance of counsel during punishment because counsel failed to present
1 See TEX. PENAL CODE ANN. § 22.02(a). any mitigating evidence even though the record shows that such mitigation evidence
existed. We affirm the trial court’s judgment.
BACKGROUND
Because Appellant’s sole issue challenges the effectiveness of his appointed
counsel at punishment, we will limit our discussion of the facts relevant to that issue to
our analysis below.
After a jury found Appellant guilty of one count of aggravated assault with a deadly
weapon, the trial proceeded to punishment. During punishment, the State retendered all
evidence it offered during the guilt-innocence portion of the trial. Defense counsel,
however, did not offer any mitigation evidence. The jury returned a sentencing verdict of
fifteen years’ incarceration and a $5,000 fine.
RELEVANT LAW
The Sixth Amendment guarantees a criminal defendant the effective assistance of
counsel. U.S. CONST. amend. VI.; Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App.
2017). To establish a claim based on ineffective assistance, an appellant must show that
(1) his counsel’s representation fell below the objective standard of reasonableness, and
(2) there is a reasonable probability that but for counsel’s deficient performance, the result
of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Nava v. State, 415 S.W.3d 289, 307−08
(Tex. Crim. App. 2013). In other words, an appellant bears the burden to show that his
trial counsel’s performance was deficient and that he was prejudiced by the deficiency.
State v. Gutierrez, 541 S.W.3d 91, 98 (Tex. Crim. App. 2017). A failure to make a showing 2 under either Strickland prong defeats a claim for ineffective assistance. Rylander v. State,
101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (en banc). Both prongs need not be
examined on review if one cannot be met. Turner v. State, 528 S.W.3d 569, 577 (Tex.
App.—Texarkana 2016, no pet.) (citing Strickland, 466 U.S. at 697).
In reviewing a claim of ineffective assistance, we must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance. Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013). To rebut
this presumption, any allegation of ineffectiveness must be firmly founded in the record,
and the record must affirmatively demonstrate ineffectiveness. Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999). “It is not sufficient that the appellant show, with
the benefit of hindsight, that his counsel’s actions or omissions during trial were merely
of questionable competence.” Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App.
2007).
In most cases, a direct appeal is an inadequate vehicle for raising a claim of
ineffective assistance because the record is generally undeveloped and cannot
adequately reflect counsel’s trial strategy. Rylander, 101 S.W.3d at 110–11. When
counsel is not afforded an opportunity to explain his strategy before being denounced as
ineffective, an appellate court should not find deficient performance unless counsel’s
conduct was “so outrageous that no competent attorney would have engaged in it.”
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Therefore, when the
record is silent on counsel’s trial strategy, we will assume that counsel had a strategy if
any reasonable sound strategic motivation can be imagined. Garcia v. State, 57 S.W.3d
436, 440 (Tex. Crim. App. 2001). 3 APPLICATION
By his sole issue, Appellant contends that he received ineffective assistance of
counsel during the punishment phase of trial2 because counsel failed to present any
mitigation evidence even though the record shows that such evidence existed.
Specifically, Appellant contends that there was evidence that he no longer used
methamphetamine, was actively co-parenting and involved in his daughter’s life, and had
a positive relationship with his mother. Appellant did not move for a new trial on the basis
of ineffective assistance of counsel and the record does not reflect any reasons why trial
counsel did not offer this or other evidence during punishment.
The Court of Criminal Appeals has repeatedly observed that a record on direct
appeal is generally insufficient to show that counsel’s representation was so deficient as
to meet the Strickland test. See Hart v. State, 667 S.W.3d 774, 782 (Tex. Crim. App.
2023); Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011); Rylander, 101
S.W.3d at 110; Bone v. State, 77 S.W.3d 828, 833 & n.13 (Tex. Crim. App. 2002). The
present record does not provide Appellant’s counsel the opportunity to “defend, explain,
or otherwise justify his conduct.” Garza v. State, No. 07-13-00137-CR, 2014 Tex. App.
LEXIS 415, at *5 (Tex. App.—Amarillo Jan. 14, 2014, no pet.) (mem. op., not designated
for publication). When, as here, the record regarding counsel’s strategy has been
insufficiently developed, we conclude Appellant has failed to overcome the presumption
that counsel’s decisions were the product of sound trial strategy. See Freeman v. State,
2 Appellant does not challenge the effectiveness of his representation during the guilt-innocence
portion of trial.
4 125 S.W.3d 505, 506–07 (Tex. Crim. App. 2003). The record before us does not
affirmatively show, by a preponderance of evidence, that counsel’s performance was
sufficiently deficient or that any alleged deficiencies resulted in the requisite level of
prejudice to Appellant’s case such that we can conclude the trial below did not produce a
just result.3 As such, we overrule Appellant’s sole issue.
In light of Appellant’s contention that the record from the trial on guilt-innocence
establishes that trial counsel’s representation fell below the objective standard of
reasonableness, we will briefly address why his contention lacks merit. During guilt-
innocence, Appellant testified he did not use methamphetamine on the day he committed
the assault, not that he no longer used methamphetamine. As to the possibility that
Appellant’s mother and ex-wife could have been subpoenaed to testify, nothing in the
record indicates that they were available4 or that they would provide testimony favorable
to Appellant. Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (counsel’s
failure to call witnesses at guilt-innocence or punishment will not support claim of
ineffective assistance unless record reflects that witnesses were available and would
testify favorably to Appellant). In the absence of a record reflecting trial counsel’s
strategy, we would be required to speculate as to whether any of the evidence identified
3 In this case, the record on direct appeal is not sufficiently developed and “cannot adequately
reflect the failings of trial counsel” for an appellate court “to fairly evaluate the merits of such a serious allegation.” Lopez, 343 S.W.3d at 143. Under such circumstances, claims of ineffective assistance of counsel rejected due to lack of adequate information may be considered on an application for a writ of habeas corpus. Id.; see TEX. CODE CRIM. PROC. ANN. art. 11.07. 4 Appellant infers that testimony that his ex-wife lived in the area at the time of the offense and that
his mother was “still here” establishes that they were available to testify. However, considering the context of these statements and the lapse of time, we cannot conclude that the record supports that these witnesses were available.
5 by Appellant would, in fact, mitigate his culpability. Bone, 77 S.W.3d at 835 (reviewing
courts may not speculate “about the existence of” mitigating evidence; “ineffective
assistance of counsel claims are not built on retrospective speculation”).
CONCLUSION
Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.
Judy C. Parker Justice
Do not publish.