In the Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-25-00071-CR
SHENERIKA EPPS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 202nd District Court Bowie County, Texas Trial Court No. 23-F-0990-202
Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Chief Justice Stevens MEMORANDUM OPINION
Shenerika Epps pled guilty to attempted evading arrest with a motor vehicle and,
pursuant to a plea-bargain agreement with the State, was placed on deferred adjudication
community supervision for three years. See TEX. PENAL CODE ANN. § 38.04 (Supp.). A
modified term and condition of Epps’s deferred adjudication community supervision required
her to “serve a term not to exceed 24 months in the Recovery Center of Bowie County.” The
State alleged that Epps failed to comply with that term and condition and moved to adjudicate
her guilt. After a hearing, the trial court found the State’s allegation true, adjudicated Epps’s
guilt, and sentenced her to two years’ imprisonment.
On appeal, Epps argues that her counsel rendered ineffective assistance during the
adjudication hearing because counsel failed to present a defense or “call any witnesses in
mitigation.” Because a silent record, like the one in this case, will not support an alleged claim
of ineffective assistance, we overrule Epps’s sole point of error and affirm the trial court’s
judgment.
I. A Silent Record Will Not Support a Claim of Ineffective Assistance
A. Standard of Review
The Sixth Amendment to the United States Constitution guarantees an accused the right
to reasonably effective assistance of counsel in criminal prosecutions. U.S. CONST. amend. VI;
Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). We “look to the totality of the
representation” in evaluating the effectiveness of counsel. Auld v. State, 652 S.W.3d 95, 113
(Tex. App.—Texarkana 2022, no pet.). As many cases have noted, the right to counsel does not
2 mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App.
2006). “[T]o prevail on a claim of ineffective assistance of counsel, [the defendant] must satisfy
the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, [687–88] . . . (1984).”
Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009) (orig. proceeding). A failure to
make a showing under either prong of the Strickland test defeats a claim for ineffective
assistance. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003).
“Any allegation of ineffectiveness must be firmly founded in the record, and the record
must affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808,
813 (Tex. Crim. App. 1999). “When such direct evidence is not available, we will assume that
counsel had a strategy if any reasonably sound strategic motivation can be imagined.” 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)). The Texas Court of Criminal Appeals “has
repeatedly stated 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.” Id.
Further, before we denounce trial counsel’s actions as ineffective, counsel should
normally be given an opportunity to explain the challenged actions. Goodspeed v. State, 187
S.W.3d 390, 392 (Tex. Crim. App. 2005). When counsel has not been given an opportunity to
explain the challenged actions, we will find deficient performance only when the conduct was
3 “so outrageous that no competent attorney would have engaged in it.” Id. (quoting Garcia v.
State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
Under the two-prong test to prove ineffective assistance of her counsel, Epps must show
(1) that trial counsel’s representation fell below an objective standard of reasonableness, based
on prevailing professional norms, and (2) that there is a reasonable probability that the result of
the proceeding would have been different but for trial counsel’s deficient performance. See
Strickland, 466 U.S. at 687–95; Hernandez v. State, 726 S.W.2d 53, 55–57 (Tex. Crim. App.
1986).
B. Analysis
Under the first Strickland prong, “the defendant must prove, by a preponderance of the
evidence, that there is . . . no plausible professional reason for a specific act or omission.” Bone,
77 S.W.3d at 836. Accordingly, judicial scrutiny of counsel’s performance must be highly
deferential, and “the defendant must overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). We apply a strong presumption that
trial counsel was competent and presume that counsel’s actions and decisions were reasonably
professional and motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994). Also, when an appellate record is silent on why trial counsel failed to take
certain actions, “the appellant has failed to rebut the presumption that trial counsel’s decision
was in some way—be it conceivable or not—reasonable.” Mata v. State, 226 S.W.3d 425, 431
(Tex. Crim. App. 2007) (citing Thompson, 9 S.W.3d at 814).
4 Epps complains that counsel rendered ineffective assistance by failing to present a
defense but puts forth no argument of what that defense might have been, especially since her
probation officer, Stephanie Ford, testified that Epps “signed an agreed modified order to go” to
the Bowie County Women’s Center but later refused to go. While it is true that “counsel has a
duty to make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary,” Strickland, 466 U.S. at 691, we find no post-trial development of
any assertions of ineffective representation, and “the record is silent as to what investigative
steps counsel took and what conclusions he may have subsequently drawn,” Guillory v. State,
652 S.W.3d 499, 505 (Tex. App.—Houston [14th Dist.] 2022, order on reh’g) (per curiam). As a
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In the Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-25-00071-CR
SHENERIKA EPPS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 202nd District Court Bowie County, Texas Trial Court No. 23-F-0990-202
Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Chief Justice Stevens MEMORANDUM OPINION
Shenerika Epps pled guilty to attempted evading arrest with a motor vehicle and,
pursuant to a plea-bargain agreement with the State, was placed on deferred adjudication
community supervision for three years. See TEX. PENAL CODE ANN. § 38.04 (Supp.). A
modified term and condition of Epps’s deferred adjudication community supervision required
her to “serve a term not to exceed 24 months in the Recovery Center of Bowie County.” The
State alleged that Epps failed to comply with that term and condition and moved to adjudicate
her guilt. After a hearing, the trial court found the State’s allegation true, adjudicated Epps’s
guilt, and sentenced her to two years’ imprisonment.
On appeal, Epps argues that her counsel rendered ineffective assistance during the
adjudication hearing because counsel failed to present a defense or “call any witnesses in
mitigation.” Because a silent record, like the one in this case, will not support an alleged claim
of ineffective assistance, we overrule Epps’s sole point of error and affirm the trial court’s
judgment.
I. A Silent Record Will Not Support a Claim of Ineffective Assistance
A. Standard of Review
The Sixth Amendment to the United States Constitution guarantees an accused the right
to reasonably effective assistance of counsel in criminal prosecutions. U.S. CONST. amend. VI;
Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). We “look to the totality of the
representation” in evaluating the effectiveness of counsel. Auld v. State, 652 S.W.3d 95, 113
(Tex. App.—Texarkana 2022, no pet.). As many cases have noted, the right to counsel does not
2 mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App.
2006). “[T]o prevail on a claim of ineffective assistance of counsel, [the defendant] must satisfy
the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, [687–88] . . . (1984).”
Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009) (orig. proceeding). A failure to
make a showing under either prong of the Strickland test defeats a claim for ineffective
assistance. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003).
“Any allegation of ineffectiveness must be firmly founded in the record, and the record
must affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808,
813 (Tex. Crim. App. 1999). “When such direct evidence is not available, we will assume that
counsel had a strategy if any reasonably sound strategic motivation can be imagined.” 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)). The Texas Court of Criminal Appeals “has
repeatedly stated 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.” Id.
Further, before we denounce trial counsel’s actions as ineffective, counsel should
normally be given an opportunity to explain the challenged actions. Goodspeed v. State, 187
S.W.3d 390, 392 (Tex. Crim. App. 2005). When counsel has not been given an opportunity to
explain the challenged actions, we will find deficient performance only when the conduct was
3 “so outrageous that no competent attorney would have engaged in it.” Id. (quoting Garcia v.
State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
Under the two-prong test to prove ineffective assistance of her counsel, Epps must show
(1) that trial counsel’s representation fell below an objective standard of reasonableness, based
on prevailing professional norms, and (2) that there is a reasonable probability that the result of
the proceeding would have been different but for trial counsel’s deficient performance. See
Strickland, 466 U.S. at 687–95; Hernandez v. State, 726 S.W.2d 53, 55–57 (Tex. Crim. App.
1986).
B. Analysis
Under the first Strickland prong, “the defendant must prove, by a preponderance of the
evidence, that there is . . . no plausible professional reason for a specific act or omission.” Bone,
77 S.W.3d at 836. Accordingly, judicial scrutiny of counsel’s performance must be highly
deferential, and “the defendant must overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). We apply a strong presumption that
trial counsel was competent and presume that counsel’s actions and decisions were reasonably
professional and motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994). Also, when an appellate record is silent on why trial counsel failed to take
certain actions, “the appellant has failed to rebut the presumption that trial counsel’s decision
was in some way—be it conceivable or not—reasonable.” Mata v. State, 226 S.W.3d 425, 431
(Tex. Crim. App. 2007) (citing Thompson, 9 S.W.3d at 814).
4 Epps complains that counsel rendered ineffective assistance by failing to present a
defense but puts forth no argument of what that defense might have been, especially since her
probation officer, Stephanie Ford, testified that Epps “signed an agreed modified order to go” to
the Bowie County Women’s Center but later refused to go. While it is true that “counsel has a
duty to make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary,” Strickland, 466 U.S. at 691, we find no post-trial development of
any assertions of ineffective representation, and “the record is silent as to what investigative
steps counsel took and what conclusions he may have subsequently drawn,” Guillory v. State,
652 S.W.3d 499, 505 (Tex. App.—Houston [14th Dist.] 2022, order on reh’g) (per curiam). As a
result, “[w]e will not assume that counsel did not investigate a defense when the record is merely
silent as to the depth of counsel’s investigation.” Brown v. State, 129 S.W.3d 762, 767 (Tex.
App.—Houston [1st Dist.] 2004, no pet.). It is entirely possible that counsel thoroughly
investigated the State’s allegation and learned that Epps had no viable defense since she agreed
to the modified term and condition and then decided not to comply with it.1 We lack any basis in
the record to conclude that counsel’s actions were so outrageous that no competent attorney
would have done the same.
1 Epps complains of the questions that her trial counsel asked and suggests that her counsel was “acting as additional counsel for the State.” We disagree. Counsel asked Epps if she was informed of the modified terms and conditions, and Epps said she “was not properly informed.” While Epps admitted to signing the modified terms and conditions, her counsel’s questioning allowed her to inform the trial court that she “didn’t know no better.” We do not believe that that questioning, which came after Ford’s testimony, assisted the State. Rather, we view that line of questioning as an explanation that Epps signed a modified term without knowing what it entailed in the hopes of obtaining leniency from the trial court during punishment. 5 As for Epps’s claim that counsel failed to present mitigating evidence, Epps fails to
suggest what kind of evidence may have mitigated her punishment. Given the presumption of
competence, it is plausible that counsel investigated but found no mitigating evidence.
Because we find that the silent record precludes a finding that Epps’s counsel rendered
ineffective assistance, we find that the first Strickland prong has not been met. As a result, we
overrule Epps’s sole point of error.
II. Conclusion
We affirm the trial court’s judgment.
Scott E. Stevens Chief Justice
Date Submitted: October 6, 2025 Date Decided: October 7, 2025
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