                          NUMBER 13-18-00168-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


ORRY ARTHUR,                                                              Appellant,

                                               v.

THE STATE OF TEXAS,                                                        Appellee.


                       On appeal from the 24th District Court
                            of De Witt County, Texas.


                            MEMORANDUM OPINION
            Before Justices Benavides, Hinojosa, and Tijerina
                Memorandum Opinion by Justice Tijerina

      A jury convicted appellant Orry Arthur of evading arrest with a motor vehicle, a

third-degree felony. See TEX. PENAL CODE ANN. § 38.04. By his sole issue, Arthur argues

that he received ineffective assistance of counsel. We affirm.
                                          I.      BACKGROUND

        At trial, the State presented the following witnesses during its case in chief: a

police dispatcher, a sheriff’s deputy, police officers from Cuero and Yoakum, Texas, and

an eyewitness. Several law enforcement officers testified that they witnessed Arthur

driving at high rates of speeds up to 135 miles per hour, and although they initially pursued

him, their attempts to apprehend him failed due to his high rate of speed. The eyewitness

testified that Arthur collided into a residential fence and fled on foot.

        Arthur’s defense was a lack of intent. He testified that he knew police officers were

pursuing him, but he entered a state of panic because at the time he was concerned

about the well-being of his parents. A jury convicted him of evading arrest with a motor

vehicle and sentenced him to six years’ imprisonment. This appeal followed.

                           II.      INEFFECTIVE ASSISTANCE OF COUNSEL

        For the first time on appeal, Arthur argues that he received ineffective assistance

of counsel because his trial counsel: (1) failed to seek a plea bargain offer; (2) presented

“irrational” and “unsound” trial strategies; (3) “lacked a basic understanding of a trial”; (4)

failed to take “pre-trial notice of the State seeking a deadly weapon finding”; (5) allowed

Arthur to testify; (5) violated court orders 1; and (6) tried to enter a plea of nolo contendere

mid-trial.

A.      Standard of Review and Applicable Law

        For a claim of ineffective assistance of counsel to be sustained, an appellant must

satisfy the two-prong test set forth under Strickland v. Washington, 466 U.S. 668, 687


         1 In his brief, Arthur does not further elaborate on which “court orders” his trial counsel allegedly

violated other than not seeking a plea bargain offer. Therefore, there is nothing for us to review as this
issue is inadequately briefed. See TEX. R. APP. P. 38.1(i).


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(1984).   Under the first prong, an appellant must show by a preponderance of the

evidence that counsel’s performance fell below an objective standard of reasonableness

and prevailing professional norms. Id.; Chapa v. State, 407 S.W.3d 428, 431 (Tex. App.—

Houston [14th Dist.] 2013, no pet.).        To evaluate the effectiveness of counsel’s

performance, we look at the totality of the representation. Robertson v. State, 187 S.W.3d

475, 483 (Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999). Any claim for ineffectiveness of counsel must be firmly founded in the record, and

the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9

S.W.3d at 814. If the record is silent on the motivation behind counsel’s tactical decisions,

an appellant usually cannot overcome the strong presumption that counsel’s

representation was reasonable. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App.

2001); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc).

       Because “the record is generally underdeveloped,” direct appeal is usually an

inadequate vehicle for claims of ineffective assistance of counsel. Menefield v. State,

363 S.W.3d 591, 593 (Tex. Crim. App. 2012). Additionally, courts are hesitant to declare

a counsel’s performance as deficient until counsel has been afforded an opportunity to

explain the reasoning behind the performance. See id. For that reason, “we 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.” Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).

       Under the second prong, an appellant must show that counsel’s performance

prejudiced the defense such that there was a reasonable probability that, but for counsel’s

unprofessional errors, the outcome of the trial would have been different. See Strickland,



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466 U.S. at 687.

B.    Discussion

      1. Plea Bargain

      Arthur first claims that his counsel was deficient for making “zero effort to seek any

plea bargain offer in the face of overwhelming evidence of [Arthur’s] guilt.” However,

Arthur did not file a motion for new trial due to ineffectiveness assistance of counsel.

Because he did not move for a new trial, his counsel was not given the opportunity to

explain any reasoning behind his conduct. See Rylander v. State, 101 S.W.3d 107, 111

(Tex. Crim. App. 2003). Thus, we will assume a strategic motive if any can be imagined

and find his counsel’s performance deficient only if the conduct was so outrageous that

no competent attorney would have engaged in it. See Andrews, 159 S.W.3d at 101.

      “[T]o establish prejudice in a claim of ineffective assistance of counsel in which a

defendant is not made aware of a plea-bargain offer . . . the [defendant] must show 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 could would not have refused to accept the plea bargain.” Ex parte

Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013). Here, there is nothing in the record

that demonstrates Arthur would have taken the plea but for his counsel’s failure to seek

a plea bargain offer. Moreover, because his counsel was not afforded an opportunity to

explain his actions, we could conceive that Arthur’s counsel’s strategy was to seek a

lesser sentence from a jury as compared to the sentence the State offered in its plea

bargain. See Andrews, 159 S.W.3d at 103. Therefore, Arthur has not overcome the




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strong presumption that his counsel provided reasonable assistance. See Mallett, 65

S.W.3d at 63; Thompson, 9 S.W.3d at 813–14.

       2. Trial Strategy

       Next, Arthur argues his trial counsel was ineffective because he sought an acquittal

based on “irrational” trial strategies. Because Arthur raises his ineffective assistance

claim on direct appeal, counsel again has not had an opportunity to respond to these

areas of concern. See Rylander, 101 S.W.3d at 107; see also Mitchell v. State, 68 S.W.3d

640, 642 (Tex. Crim. App. 2002) (“The reasonableness of counsel’s choices often

involves facts that do not appear in the appellate record,” and thus a writ of habeas corpus

is the more appropriate vehicle to raise an ineffective assistance of counsel claim.); see

also Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) (finding that trial counsel

should ordinarily be afforded an opportunity to explain his actions before being

denounced ineffective). It is logical to conclude that counsel, faced with overwhelming

evidence of Arthur’s guilt, chose to proceed with a defense of lack of intent as a matter of

trial strategy, which is within his prerogative. See Marlow v. State, 886 S.W.2d 314, 317

(Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (“Trial counsel may pursue one

reasonable defensive theory and exclude others; this is within his constitutionally

protected independence under Strickland.”).

       Arthur also claims that his counsel’s “irrational” trial strategies included calling

Arthur’s mother, Cindy Arthur, and Officer Shane Carver as witnesses because the State

elicited harmful testimony from them on cross-examination. However, decisions over

presenting witnesses are largely a matter of trial strategy. See Robinson v. State, 514

S.W.3d 816, 824 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). Because we do not



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have a record of counsel’s strategy for calling these witnesses during the punishment

phase, we will only find his decision deficient if it was so outrageous that no competent

attorney would have engaged in it. See Andrews, 159 S.W.3d at 101.

       Officer Carver testified that it appeared to him Arthur was driving under the

influence of a narcotic and additionally charged him with driving while intoxicated (DWI).

In this regard, counsel might have theorized that Arthur’s best chance of an acquittal was

Officer Carver’s testimony that a negative toxicology report could have influenced the

district attorney’s decision to dismiss the DWI charge. Additionally, Officer Carver stated

that Arthur displayed symptoms, such as slurred speech and glassy, bloodshot eyes,

which indicated he could have been suffering from a closed-head injury instead of

possible intoxication. Moreover, Cindy testified Arthur’s father was suicidal and described

the struggles between him and Arthur, which could have made Arthur sympathetic to the

jury. Although the State on cross-examination entered Arthur’s jail call to Cindy into

evidence, in which she criticized and scolded Arthur, under the circumstances of this

case, we cannot conclude that counsel’s decision to call Officer Carver or Cindy was so

outrageous that no attorney would engage in it. See Robinson, 514 S.W.3d at 824;

Andrews, 159 S.W.3d at 101. Accordingly, Arthur has failed to show that calling these

witnesses amounted to ineffectiveness assistance of counsel.

       3. Trial and Enhancement

       Arthur argues that his trial counsel lacked a basic understanding of a trial, failed to

take “pre-trial notice” of the State’s intent to seek a deadly weapon finding, and did not

know or research the significance of this enhancement.          However, Arthur does not

demonstrate that but for his counsel’s performance, the outcome of trial would have been



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different. See Rylander, 101 S.W.3d at 107. In this regard, multiple law enforcement

officers testified that Arthur’s use of his vehicle at such a high rate of speed for at least

twenty-seven minutes jeopardized multiple lives by nearly striking other vehicles. The

officers further testified that they were unable to deploy spike strips to prevent him from

traveling into town, which further endangered others. In fact, Arthur testified that their

testimony was correct: he knew police officers were chasing him while “he had his foot

to the floor,” and he disregarded traffic signals and speed limit signs. Thus, absent

evidence of counsel’s strategy, we cannot denounce counsel’s action of failing to take

“pre-trial notice” of a deadly weapon finding as ineffective, nor can we determine that

there is a reasonable probability that the outcome would have been different had counsel

“researched the significance of this enhancement.” See Thompson, 9 S.W.3d at 813; see

also Moore v. State, 520 S.W.3d 906, 913 (Tex. Crim. App. 2017) (holding that a motor

vehicle may become a deadly weapon if the manner of its use can cause death or serious

bodily injury).

       Arthur also complains his trial counsel was ineffective because he lacked an

understanding of why a plea of nolo contendere could not be entered in the middle of the

trial. However, “claimed ineffective assistance of counsel may or may not have a direct

nexus with the defendant’s guilt or innocence.” Martinez v. State, 109 S.W.3d 800, 803

(Tex. App.—Corpus Christi–Edinburg 2003, no pet.). Here, Arthur did not enter a plea of

guilty or nolo contendere, and instead proceeded to trial. Therefore, we find that the jury’s

verdict and sentence was rendered independent of and is not supported by the alleged

ineffective assistance of counsel claim. We reject this argument.

       4. Testimony



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       Lastly, Arthur argues his trial counsel was ineffective for allowing him to testify.

Ultimately, the decision to testify rested solely on Arthur. See Smith v. State, 286 S.W.3d

333, 338 n.9 (Tex. Crim. App. 2009); Johnson v. State, 169 S.W.3d 223, 235 (Tex. Crim.

App. 2005). In fact, trial counsel may be held deficient for depriving a defendant of his

right to testify. See Johnson, 169 S.W.3d at 235. Nonetheless, outside the presence of

the jury, the trial court admonished Arthur of his right not to testify on more than one

occasion and that Arthur would be subject to cross-examination and self-incrimination to

which Arthur replied: “I believe it is best I do.” Arthur also informed the trial court that he

had the opportunity to confer with his trial counsel about the decision to testify. Thus, the

record reflects that Arthur conferred with his counsel and was admonished by the trial

court before testifying. See Andrews, 159 S.W.3d at 101.

       In light of the foregoing, we cannot conclude that it fell below an objective standard

of reasonableness or that the outcome of Arthur’s trial would have been different based

upon the totality of the evidence. Considering the overwhelming evidence of guilt and the

additional punishment evidence, including Arthur’s jail calls and the deadly weapon

enhancement, we cannot conclude that but for counsel’s performance, the jury would not

have sentenced Arthur to six years’ imprisonment. Failure to make either of the required

showings of deficient performance and sufficient prejudice defeats the claim of ineffective

assistance. Thompson, 9 S.W.3d at 813. We overrule his sole issue.




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                                   III.    CONCLUSION

       We affirm the judgment of the trial court.

                                                        JAIME TIJERINA,
                                                        Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
19th day of December, 2019.




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