                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-09-00173-CR
                             NO. 02-09-00174-CR


WALLACE JUDKINS                                                    APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

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                        MEMORANDUM OPINION1

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      A jury convicted Appellant Wallace Judkins of attempted capital murder,

enhanced by two prior felony convictions, and evading arrest. The jury assessed

punishment at life imprisonment for attempted capital murder and two years‘

confinement and a $10,000 fine in the evading arrest case.       The trial court

sentenced Appellant accordingly. In four issues, Appellant contends (1) that the


      1
      See Tex. R. App. P. 47.4.
trial court erred by not allowing him to present evidence regarding his claim of

ineffective assistance of counsel at the hearing on his motion for new trial; (2)

that the trial court erred by admitting deposition testimony in violation of his

confrontation rights; (3) that the admission of the deposition testimony prevented

trial counsel from rendering effective assistance of counsel; and (4) that trial

counsel was also ineffective because he failed to produce or offer into evidence

medical/psychological testimony and documents regarding Appellant, failed to

obtain the appointment of an expert for mitigation purposes, failed to obtain the

appointment of an expert regarding ballistics, and failed to obtain the

appointment of an expert regarding gunpowder residue.

      In six supplemental issues (supplemental issues five through ten) raised

after we abated these cases for the trial court to conduct an evidentiary hearing

on Appellant‘s motion for new trial, he complains about the trial court‘s hearing

and granting the State‘s motion to reconsider and reiterates his complaints about

trial counsel‘s ineffective assistance at trial. Because we hold that the trial court

committed no reversible error and that Appellant did not satisfy his burden to

prove ineffective assistance of counsel at trial, we affirm the trial court‘s

judgments.

I. Background Facts

      Robert Denning lived in a house on ranch property. Arriving home for

lunch on January 6, 2009, Denning noticed a pickup truck parked by the front of

his house. Denning stopped to open the cattle guard across his driveway, and


                                         2
as he then proceeded up the driveway, the truck drove toward him. The driver

asked Denning, ―Is this so-and-so‘s house?‖ Denning asked the driver for the

number of the house he was trying to find, and the man drove away.

      Thinking that ―something [had] happened,‖ Denning called 911 and drove

around the back of the house, where he saw that the back door was open.

Believing that his house had been broken into, he began backing up his truck.

When he got ―even with the house,‖ a man, Appellant, was suddenly standing at

Denning‘s vehicle with a gun. Appellant said, ―Stop, I‘m fixing to kill your ass,‖

and then Denning stepped on the gas pedal. As he drove off, his side mirror hit

Appellant and spun him around. Appellant shot at Denning, and the bullet came

through the windshield and hit the dash.      Appellant fired two more shots at

Denning. As Denning continued backing away, he saw Appellant walk around to

the front of the house and then come back carrying a gun case belonging to

Denning. Appellant then began walking down the driveway. Appellant dropped

the guns about two-thirds of the way down the driveway.

      At the end of the driveway, Appellant was passed by Deputy Billy Wilson,

who was driving southbound.       Appellant flagged down a blue Volkswagen

heading northbound and driven by Richard Pratt.2 Appellant got in the vehicle on


      2
       In a majority opinion, we reversed Appellant‘s conviction for the
aggravated kidnapping of Pratt and remanded that case to the trial court for a
new trial. See Judkins v. State, No. 02-09-00172-CR, 2010 WL 3377788, at *5
(Tex. App.—Fort Worth Aug. 26, 2010, no pet.) (mem. op., not designated for
publication).


                                        3
the passenger side. Denning was still on the phone with 911, and he followed

the Volkswagen until passed by a deputy.

      Upon hearing a call about a person with a gun in the area he had just

passed, Deputy Wilson called in a description of the vehicle he had passed and

turned his car around to head northbound.         Deputy Tom Huston had been

dispatched in response to Denning‘s call about the burglary, and on the way

there, he heard over the radio that a blue Volkswagen was involved. Deputy

Huston headed toward the area, and the Volkswagen passed in front of him. As

it did so, Deputy Huston saw two white males in the vehicle. The driver looked

straight ahead; the passenger looked over his shoulder and continuously

watched the deputy as he drove behind the Volkswagen. After two other officers

arrived as backup, Deputy Huston turned on his lights to initiate a traffic stop.

The Volkswagen did not stop, and a chase ensued.

      Trooper Cody Carter testified that he joined in the pursuit at FM 428 and

Loop 288.     He saw the Volkswagen enter and leave a residential area and

ultimately end up in a trailer park.

      He admitted to briefly losing sight of the car during his pursuit. At one

point, he located it traveling parallel to him. Then he lost it again, saw it behind

him in his rear view mirror, and lost it again. Trooper Carter testified that he was

in uniform, he was in a marked vehicle, his lights were on, and he was attempting

to lawfully arrest the person in the car. Trooper Carter did not participate in the

ultimate stop.


                                         4
       The chase led to a trailer park where Appellant‘s mother lived. An officer

got out of his unit and was in the process of beginning to throw spikes to

puncture the Volkswagen‘s tires when the Volkswagen turned and drove straight

at him. The officer, believing the Volkswagen was going to hit him, dropped the

spikes and drew his weapon. The Volkswagen then made a sharp turn and

stalled out against a tree in the yard of one of the mobile homes.

       Appellant got out of the car on the passenger side, fell or was pushed onto

the ground, and was handcuffed by Deputy Johnny Peters. Appellant claimed

that the Volkswagen‘s driver, Pratt, had kidnapped him and that Pratt had a gun.

Appellant claimed that Pratt had forced him to get into his car. The officers did

indeed find a gun in the Volkswagen, and Pratt admitted that it had been in his

lap.

       The officers searched Appellant and found several remote controls, a

phone, and business cards, items that Denning later identified as his property.

Officers found a pair of dark-colored gloves on Appellant as he was being

processed into jail.

       Investigator Jeff Coats found three matching shell casings outside

Denning‘s house. These shell casings also matched the bullets found in the gun

recovered at Appellant‘s arrest.

       Items in Denning‘s home had been moved from throughout the house and

put into a pile. Investigator Coats, looking for fingerprints inside Denning‘s home,




                                         5
found patterns that ―appeared to take on a glove-like texture,‖ indicating that

someone who had been there that day had been wearing gloves.

      The State also relied on Denning‘s statements recorded on the 911 tape

that he feared Appellant would flag somebody down or carjack someone.

Denning can be heard to say, ―Please, don‘t pull a gun on him‖; ―The guy‘s

armed and he just flagged down a car. Jesus, don‘t pull a gun on him after you

get in there‖; ―Please, he‘s gonna carjack ‗em‖; and ―I‘ve gotta keep these people

in sight because somebody‘s gonna get hurt.‖            The jurors also heard

conversations between the 911 operator and police officers referring to

Appellant‘s having flagged down the Volkswagen, a possible carjacking, and a

possible hostage in the car. Several officers testified about the chase, and the

video of the pursuit was also entered into evidence.

II. Admission of the Deposition

      In his second issue, Appellant complains that the trial court erred by

admitting Pratt‘s deposition in violation of Appellant‘s constitutional right to

confront witnesses against him. We have already held that the admission of

Pratt‘s deposition was constitutional error and harmful in the aggravated

kidnapping case.3 In these two remaining cases, however, the evidence is clear

regarding both the attempted capital murder and the flight. Denning‘s testimony

alone addressed all the elements of the attempted capital murder. Pratt had no


      3
       See id. at *4.


                                        6
knowledge of the attempted capital murder that occurred before Appellant

flagged him down.

      Regarding the evading arrest, the evidence shows that Appellant had a

gun at the scene of the attempted capital murder, that only one gun was

recovered from the Volkswagen after Appellant‘s arrest, and that the bullets from

that gun and spent casings found at the scene of the attempted capital murder

match.    Further, Denning‘s testimony shows that Appellant flagged down the

Volkswagen. Such evidence demonstrates that Appellant was not an unwilling

passenger in the Volkswagen that evaded law enforcement.         The deposition

testimony showed only that Pratt was not acting as a party. Accordingly, we hold

that the admission of the deposition was harmless in these two cases. 4 We

overrule Appellant‘s second issue.

III. Hearing on Motion for New Trial—Ineffective Assistance

      In his first issue, Appellant complains that the trial court erred by not

allowing him to present evidence of ineffective assistance at the hearing on his

motion for new trial. At a hearing on his motion for new trial in the trial court

before the original appeal, Appellant had attempted to offer evidence of

ineffective assistance of counsel at trial. Although the complaint was properly

pled in his motion, the trial court did not permit him to offer the necessary




      4
         See Tex. R. App. 44.2(a).


                                       7
evidence and did not permit him to seek trial counsel‘s explanation for his actions

and inaction at trial and in trial preparation.

      This court abated these two cases to the trial court with instructions to hold

an evidentiary hearing on Appellant‘s motion for new trial, and the trial court did

hold the hearing. We therefore overrule his first issue as moot.

IV. State’s Motion to Reconsider

      In his fifth, sixth, seventh, eighth, and ninth supplemental issues, Appellant

complains about the trial court‘s entertaining and granting the State‘s Motion to

Reconsider. Appellant argues that the trial court lacked the authority to consider

and to rule on the State‘s motion to reconsider granting the motion for new trial

because the trial court was limited to considering the motion for new trial only.

      Our abatement order required the trial court to hold the evidentiary hearing

on Appellant‘s motion for new trial on or before Monday, October 18, 2010. If the

trial court granted Appellant‘s motion for new trial in either or both cases, the trial

court was ordered to forward immediately a copy of the order granting the motion

for new trial to this court so that this court could dismiss the corresponding

appeal or appeals. If the trial court denied the motion for new trial, the trial court

was ordered to file a supplemental reporter‘s record of the hearing, along with

supplemental clerk‘s records, in this court on or before Monday, November 1,

2010, so the appeals could be automatically reinstated without further order.

      The trial court held the hearing on Appellant‘s motion for new trial and on

October 8, 2010, granted the motion, ordering a new trial. Instead of immediately


                                            8
forwarding a copy of the order granting the motion for new trial to this court as

ordered, the trial court allowed the State to file a motion to reconsider the order

granting Appellant‘s motion for new trial; considered that motion; entered an

order setting another hearing; conducted that hearing on October 21, 2010;

granted the State‘s motion to reconsider; and denied Appellant‘s motion for new

trial.

         The trial court, however, advised this court that the State had filed a motion

to reconsider and that the trial court intended to conduct a hearing on the State‘s

motion. This court, understanding what the trial court was doing, approved the

trial court‘s actions and extended the deadline for filing the record with this court.

The trial court‘s actions were beyond the scope of the original order, but they

were approved by this court in the interest of fairness.              Just as it was

fundamentally unfair to justify denying Appellant‘s motion by denying him the

opportunity to make the necessary record in support of his motion for new trial, it

would have been similarly unfair to justify denying the State‘s motion by denying

the State the opportunity to make the necessary record in support of the State‘s

motion to reconsider.

         The Texas Court of Criminal Appeals has held that ―an order granting or

denying a motion for new trial may be freely rescinded so long as such action

occurs within the 75 days provided by the rules (i.e., current Rule 21.8(a) &




                                            9
(c)) . . .‖5 Similarly we hold that a trial court may freely rescind an order granting

or denying a motion for new trial upon abatement, so long as such action occurs

within the period authorized by the appellate court for abatement for the purpose

of conducting a hearing on a motion for new trial and ruling thereon. For the

reasons stated above, we overrule Appellant‘s supplemental issues five, six,

seven, eight, and nine.

V. Ineffective Assistance Of Counsel

      In his third and fourth issues and his tenth supplemental issue, Appellant

argues that (1) trial counsel was rendered ineffective because of the admission of

Pratt‘s deposition and (2) he was further denied effective assistance of counsel

because trial counsel failed to perform any investigation into any defensive

element; offer any evidence of defensive issues, including medical/psychological

evidence; or obtain a mitigation expert, ballistics expert, or gunpowder residue

expert.

      To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that his counsel‘s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel‘s deficiency, the result of the trial would have

been different.6


      5
          Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex. Crim. App. 1998).
      6
       Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v.

                                         10
      In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of each case. 7

The issue is whether counsel‘s assistance was reasonable under all the

circumstances and prevailing professional norms at the time of the alleged error. 8

Review of counsel‘s representation is highly deferential, and the reviewing court

indulges a strong presumption that counsel‘s conduct fell within a wide range of

reasonable representation.9 A reviewing court will rarely be in a position on

direct appeal to fairly evaluate the merits of an ineffective assistance claim. 10 ―In

the majority of cases, the record on direct appeal is undeveloped and cannot

adequately reflect the motives behind trial counsel‘s actions.‖11 To overcome the

presumption     of   reasonable   professional   assistance,    ―any   allegation   of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.‖12 It is not appropriate for



State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v. State, 9
S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988 S.W.2d 770,
770 (Tex. Crim. App. 1999).
      7
       Thompson, 9 S.W.3d at 813.
      8
       See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.
      9
       Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 63.
      10
          Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14.
      11
          Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63).
      12
          Id. (quoting Thompson, 9 S.W.3d at 813).


                                         11
an appellate court to simply infer ineffective assistance based upon unclear

portions of the record.13

      The second prong of Strickland requires a showing that counsel‘s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial with a

reliable result.14   In other words, appellant must show there is a reasonable

probability that, but for counsel‘s unprofessional errors, the result of the

proceeding would have been different.15 A reasonable probability is a probability

sufficient to undermine confidence in the outcome.16 The ultimate focus of our

inquiry must be on the fundamental fairness of the proceeding in which the result

is being challenged.17

      The deposition testimony did not address the attempted capital murder

case at all. Although the deposition testimony did address the flight and should

not have been admitted because Appellant was not allowed to be present at the

deposition and was, therefore, denied his constitutional right of confrontation, the

error was, as discussed above, harmless beyond a reasonable doubt. Denning

testified to Appellant‘s flagging down Pratt‘s car and getting in as Appellant fled


      13
        Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).
      14
        Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
      15
        Id. at 694, 104 S. Ct. at 2068.
      16
        Id., 104 S. Ct. at 2068.
      17
        Id. at 697, 104 S. Ct. at 2070.


                                          12
from Denning‘s property.    Denning testified about following Pratt‘s car during

Appellant‘s flight. Officers testified about the chase, and the video of the pursuit

was also entered into evidence. Consequently, the evading arrest conviction

was not dependent on Pratt‘s deposition testimony, nor was the testimony

particularly important to proving the case. We hold that Appellant has failed to

satisfy either prong of the Strickland test in regard to the admission of the

deposition testimony as it relates to the evading arrest and attempted capital

murder convictions. We overrule Appellant‘s third issue.

      At the hearing on Appellant‘s motion for new trial, trial counsel appears to

have failed to do anything to refresh his memory regarding trial and trial

preparation. As Appellant points out, trial counsel had forgotten many dates and

many circumstances, such as whether Appellant was charged with two

enhancement paragraphs or only one, certain facts of Appellant‘s medical

history, whether trial counsel had requested an instruction on a lesser included

offense, and the like.

      Trial counsel had requested a psychiatric examination of Appellant, but

had little recollection of Appellant‘s medical and mental health history.       Dr.

Goodness, the psychiatrist who was appointed to conduct the examination, found

Appellant competent to stand trial, although there is no record that she ever

spoke with him in jail. Mandy Smithers, custodian of the records for the Denton

County Jail, testified that it was possible that Dr. Goodness had gone into the jail

without the visit appearing in the records.       Counsel had worked with Dr.


                                        13
Goodness often before and relied on her to determine how prior diagnoses could

help the defense case.     In this case, Appellant had several prior diagnoses,

although counsel could not remember what they were, but Dr. Goodness

disagreed with some of the diagnoses after examining Appellant.           Although

counsel did not personally obtain Appellant‘s mental health and prison records,

Dr. Goodness did.

      Trial counsel essentially testified that he felt that his client was trying to

manipulate him by acting like he had mental and emotional problems. Counsel

emphasized the fact that he was eligible for appointment to capital murder cases

and was particularly well qualified to determine what punishment issues should

be presented to the jury. He testified that he disliked mitigation experts because

they tried to run the case ―and tell you how to present your case, which nobody

does that for me [sic].‖ Counsel testified that he was afraid that a Denton County

jury panel would likely think ―it‘s a bunch of bologna‖ because ―the mitigation

expert is a hired gun. They‘re there to tell a sob story to make you feel bad

about, guilty about putting this gentleman in prison, something like that.‖ In his

opinion, the best mitigation witnesses were the family members, but he called

only one family member, Appellant‘s sister, because he believed that the

testimony of Appellant‘s wife and mother would only be redundant and biased.

      When asked about his decision not to call an expert to testify about

ballistics or gunpowder residue, trial counsel testified that gunpowder residue did

not stay in place for very long and that friends who knew more about it than he


                                        14
did had told him things that made him believe that ballistics testimony would hurt

the defense.

      Trial counsel explained his decisions as a matter of trial strategy based

upon his experience and qualifications that permit him to represent clients in

death penalty cases.     Based on the record before us, we cannot say that

Appellant has shown that trial counsel‘s conduct fell below an objective standard

of reasonableness. Appellant has failed to meet the first prong of the Strickland

test.18 Even had Appellant met the first prong, the police observed Appellant as

he fled from them, and Denning testified that Appellant shot at him when he

came upon Appellant burglarizing Denning‘s home. Appellant has therefore also

not met the second prong of Strickland—he has not shown that there is a

reasonable probability that, but for some deficiency in trial counsel‘s

representation, the result of the trial would have been different.19      Because

Appellant has failed to sustain his burden under Strickland, we overrule his fourth

issue and his tenth supplemental issue.




      18
        See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.
      19
        Id. at 694, 104 S. Ct. at 2068.


                                          15
VI. Conclusion

      Having overruled Appellant‘s four issues and six supplemental issues, we

affirm the trial court‘s judgments.




                                                LEE ANN DAUPHINOT
                                                JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 14, 2011




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