                                    NO. 12-19-00327-CR

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS

                                                     §      APPEAL FROM THE
 EX PARTE:
                                                     §      COUNTY COURT AT LAW
 CHARLES WILLIAM NICHOLS
                                                     §      ANDERSON COUNTY, TEXAS

                                    MEMORANDUM OPINION
        Charles William Nichols appeals the trial court’s denial of an evidentiary writ hearing. In
three issues, Appellant argues that the trial court erred by denying an evidentiary hearing on the
questions of whether he received ineffective assistance of counsel because his trial counsel (1)
failed to object to commitment questions and statements during voir dire, (2) failed to request
testimony regarding potential juror misconduct, and (3) made prejudicial references to and elicited
prejudicial testimony from Appellant at trial. We affirm.


                                            BACKGROUND
        Appellant was convicted of driving while intoxicated and sentenced to confinement for 365
days, suspended for a term of twelve months. Subsequently, he filed an application for writ of
habeas corpus alleging six grounds of ineffective assistance of counsel. Appellant requested an
evidentiary hearing on the matter, and, in the alternative, an order that his trial counsel, John
Eastland, submit an affidavit addressing the allegations. A hearing was held to determine whether
an evidentiary hearing was needed. Relying on the arguments of counsel at the hearing and the
trial judge’s personal recollection of the trial, the trial court denied as frivolous grounds one, three,
four, five, and six of the application, scheduled a hearing on ground two, and ordered Eastland to
submit an affidavit addressing ground two. Appellant subsequently abandoned ground two
because he was unable to obtain expert support for the allegation. This appeal followed.
                                DENIAL OF EVIDENTIARY HEARING
       In Appellant’s first, second, and third issues, respectively, he argues that the trial court
erred by denying an evidentiary hearing on grounds one, five, and six of his writ application.
Standard of Review and Applicable Law
       Texas Code of Criminal Procedure Article 11.072 establishes the procedures for an
application for a writ of habeas corpus when the applicant seeks relief from a judgment of
conviction ordering community supervision. TEX. CODE CRIM. PROC. ANN. art. 11.072 § 1 (West
2005). In determining whether to grant or deny relief, the trial court may order affidavits,
depositions, interrogatories, or a hearing, and may rely on the trial judge’s personal recollection.
Id. § 6(b). If the court determines from the face of the application or documents attached to it that
the applicant is manifestly entitled to no relief, it must enter a written order denying the application
as frivolous. Id. § 7(a). In any other case, the court must enter a written order including findings
of fact and conclusions of law. Id. A writ hearing is not required if the fact-finding procedure
employed was adequate for reaching reasonably correct results. See Ex parte Davila, 530 S.W.2d
543, 545 (Tex. Crim. App. 1975) (op. on reh’g); Ex parte Salazar, 510 S.W.3d 619, 627 (Tex.
App.—El Paso 2016, pet. ref'd) (evidentiary hearing not required when issues can be resolved
without one).
       An applicant must establish the two prongs of the United States Supreme Court’s test in
Strickland v. Washington to prevail in an ineffective assistance of counsel claim. 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim.
App. 1986). Under the first prong of the Strickland test, he must show that counsel’s performance
was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707,
712 (Tex. Crim. App. 2000). “This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, the applicant must “show that
counsel’s representation fell below an objective standard of reasonableness.” Id., 466 U.S. at 688,
104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.
       Under the second prong, the applicant must show that the “deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.
The appropriate standard for judging prejudice requires an applicant to “show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding



                                                   2
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at
712. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. An applicant claiming
ineffective assistance of counsel must affirmatively prove prejudice from counsel’s deficient
performance. Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim. App. 1999).
       Review of trial counsel’s representation is highly deferential. Tong, 25 S.W.3d at 712. The
reviewer indulges in a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. It is the
applicant’s burden to overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712. Moreover, 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).
       Failure to make the required showing of either deficient performance or sufficient prejudice
defeats the ineffectiveness claim. Id. An applicant must prove both prongs of the Strickland test
by a preponderance of the evidence in order to prevail. Tong, 25 S.W.3d at 712.
Ground One—Failure to Address Commitment Questions and Statements
       In Appellant’s first issue, he argues that the trial court erred by denying an evidentiary
hearing on the issue of Eastland’s failure to object to or otherwise address the State’s use of
commitment questions and statements regarding the word “operating” during voir dire. To satisfy
the elements of DWI, the State was required to prove that Appellant “operated” a motor vehicle in
a public place while intoxicated. See TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2019). The
penal code does not define “operating.” Kirsch v. State, 357 S.W.3d 645, 650 (Tex. Crim. App.
2012). When statutory language is undefined, jurors may freely read it to have any meaning that
is acceptable in common parlance. Id. In the context of evidentiary sufficiency, the court of
criminal appeals defines “operation” as occurring when “the totality of the circumstances []
demonstrate that the defendant took action to affect the functioning of his vehicle in a manner that
would enable the vehicle’s use.” Id. at 650-51. However, including this definition in the jury
charge improperly impinges on the jury’s fact-finding authority by limiting their understanding of
what evidence could constitute “operating.” Id. at 652. When a term is undefined in the jury




                                                 3
charge, we presume that the jury attached a common understanding to the meaning of the term.
McAfee v. State, 467 S.W.3d 622, 640 (Tex. App.—Houston [1st Dist.] 2015, pet ref’d).
         During voir dire, the following occurred:


         PROSECUTOR: Operating a vehicle. And that’s determined based on all the issues that
         demonstrates [sic] that a defendant took action to affect a functioning of the vehicle in a manner that
         would enable the vehicle’s use. It is not required that the defendant be able to move. It’s not required
         that the vehicle had to move. It is defendant took action to affect the functioning of the vehicle in a
         manner that would enable the vehicle’s use. What is that? Does anybody remember when they first
         learned to drive, when you first learned to operate a motor vehicle?

         UNIDENTIFIED JUROR: We put the key in the ignition.

         PROSECUTOR: Put the key in the ignition. Put the key in the ignition. Anybody teaching one to
         drive? Anybody brave enough to teach their teenager how to drive? A few? Ms. Murray, you raised
         your hand, and you’ve taught someone how to drive? I think, Ms. Cleveland, did you raise your
         hand?

         JUROR CLEVELAND: Yes.

         PROSECUTOR: What is it—what’s operating—all right. Ms. Van Deman.

         JUROR VAN DEMAN: Yes, ma’am.

         PROSECUTOR: You taught someone who is operating, put the key in the ignition. What else?

         JUROR VAN DEMAN: Being in the driver’s seat.

         PROSECUTOR: Being in the driver’s seat. You’re in control of that vehicle in the driver’s seat.

         JUROR VAN DEMAN: Work the gears.

         PROSECUTOR: Work the gears.

         JUROR VAN DEMAN: Start it.

         PROSECUTOR: Start it. Start it. Work the gears, key in the ignition, driver’s seat. Those actions to
         affect the functioning of the vehicle. It’s operating. Does not have to be rolling down the street or
         pulled over on the shoulder. Car doesn’t even have to be in motion. It does not have to be moving
         down a road. It’s operating the vehicle.



Appellant argues that Eastland was ineffective because the prosecutor’s voir dire contained
improper commitment questions and improper comments on an undefined term, and Eastland’s
failure to object or address them left the jury no option but to find that Appellant was “operating”
the vehicle. 1

         1
           The evidence at trial shows that Appellant entered the driver’s side of his vehicle, started the engine, and
placed the vehicle in reverse gear before the police approached him. Appellant appealed from his conviction, and this


                                                            4
        Appellant offers no reason why this ineffectiveness ground could not be resolved without
an evidentiary hearing, and we conclude that it could. Regarding Eastland’s failure to object to
the prosecutor’s giving a definition of the term “operate,” the trial court could have reasonably
determined based on its recollection of the trial that the error, if any, did not render Eastland’s
performance deficient because it was not so serious that he was not functioning as the “counsel”
guaranteed by the Sixth Amendment. See TEX. CODE CRIM. PROC. ANN. art. 11.072 § 6(b);
Strickland, 466 U.S. at 687-89, 104 S. Ct. at 2064-65. Alternatively, even if the trial court
determined that Eastland’s performance was deficient by failing to object, it could have reasonably
concluded based on its recollection of the trial that the deficiency did not result in prejudice to the
defense. See TEX. CODE CRIM. PROC. ANN. art. 11.072 § 6(b); Strickland, 466 U.S. at 687, 104 S.
Ct. at 2064. Despite Appellant’s assertion that Eastland never addressed the State’s definition of
the term “operate,” Eastland developed a contrary understanding of the term in his voir dire, when
the following exchange occurred:


        EASTLAND: [The prosecutor] asked y’all about operating a vehicle. What’s the common
        conception of operating when you think of somebody operating a vehicle? What do you see in your
        mind, Ms. Tenney?

        JUROR TENNEY: Driving down the road.

        EASTLAND: Driving down the road. Okay. How about you Ms. Warren?

        JUROR WARREN: Same.

        EASTLAND: Okay. Mr. Crist?

        JUROR CRIST: Same.


Based on Eastland’s voir dire and the lack of a definition in the jury charge, the jury could conclude
that the term is statutorily undefined. Under these circumstances, we presume that the jury
attached a common understanding to the meaning of the term regardless of the definition stated by
the prosecutor in voir dire. See McAfee, 467 S.W.3d at 641 (presumption jury attached common
understanding to meaning of “wrong” despite prosecutor’s definition of term in voir dire). For
these reasons, we conclude that this part of Appellant’s first ground was resolvable without an
evidentiary hearing.


Court affirmed. See Nichols v. State, No. 12-17-00374-CR, 2018 WL 5023623 (Tex. App.—Tyler Oct. 17, 2018, pet.
ref’d) (mem. op., not designated for publication).


                                                      5
       Regarding the alleged improper commitment questions, we conclude this part of
Appellant’s first ground was likewise resolvable without an evidentiary hearing. Commitment
questions are impermissible unless the law requires a commitment. Davis v. State, 349 S.W.3d
517, 518 (Tex. Crim. App. 2011). A commitment question is one that commits a prospective juror
to resolve or refrain from resolving an issue a certain way after learning a particular fact. Standefer
v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001). Commitment questions often require a “yes”
or “no” answer that commits the juror to resolve an issue in a particular way. Id. However, open-
ended questions may also be commitment questions if they prompt a prospective juror to set
hypothetical decision-making parameters. Id. at 180.
       When the law requires a certain type of commitment from jurors, the attorneys may ask the
prospective jurors whether they can follow the law in that regard. Id. at 181. For a commitment
question to be proper, one of the possible answers must give rise to a valid challenge for cause.
Id. at 182. However, an otherwise proper commitment question may nevertheless be improper if
it includes facts in addition to those necessary to establish a challenge for cause. Id.
       Improper commitment questions are considered harmful when they result in the trial of a
defendant by a juror who prejudged him or some aspect of his case before hearing any evidence.
Sanchez v. State, 165 S.W.3d 707, 714 (Tex. Crim. App. 2005). Factors to consider in determining
such harm include, but are not limited to,


       (1) whether the questions were unambiguously improper and attempted to commit one or more
           veniremen to a specific verdict or course of action;

       (2) how many, if any, veniremen agreed to commit themselves to a specific verdict or course of
           action if the State produced certain evidence;

       (3) whether the veniremen who agreed to commit themselves actually served on the jury;

       (4) whether the defendant used peremptory challenges to eliminate any or all of those veniremen
           who had committed themselves;

       (5) whether the defendant exhausted all of his peremptory challenges upon those veniremen and
           requested additional peremptory challenges to compensate for their use on improperly
           committed veniremen;

       (6) whether the defendant timely asserted that a named objectionable venireman actually served on
           the jury because he had to waste strikes on the improperly committed jurors; and

       (7) whether there is a reasonable likelihood that the jury’s verdict or course of action in reaching a
           verdict or sentence was substantially affected by the State’s improper commitment questioning
           during voir dire.



                                                         6
Id.
       The prosecutor’s questions here might be considered commitment questions because they
prompted the prospective jurors to set hypothetical decision-making parameters. See id. at 180.
And if so, they are improper because no possible answer would give rise to a challenge for cause.
See id. at 182. Nonetheless, the trial court could have resolved the issue against Appellant without
an evidentiary hearing. Relying on its recollection of the proceedings, the trial court could have
determined that counsel’s error by failing to object, if any, did not render his performance deficient
because the error was not so serious that counsel was not functioning as the “counsel” guaranteed
by the Sixth Amendment. See TEX. CODE CRIM. PROC. ANN. art. 11.072 § 6(b); Strickland, 466
U.S. at 687, 104 S. Ct. at 2064. Alternatively, even if the trial court determined that counsel’s
performance was deficient, it could have determined based on its recollection that the deficient
performance did not prejudice Appellant’s defense and rejected the claim on that basis. See id.;
see also Sanchez, 165 S.W.3d at 714.
       Because the trial court could reach reasonably correct results regarding Appellant’s first
alleged habeas ground without an evidentiary hearing, we conclude that the trial court did not err
by denying an evidentiary hearing on that ground. See Davila, 530 S.W.2d at 545; Salazar, 510
S.W.3d at 627. Accordingly, we overrule Appellant’s first issue.
Ground Five—Failure to Request a Hearing on Juror Misconduct
       In Appellant’s second issue, he argues that the trial court erred by denying an evidentiary
hearing on the issue of Eastland’s failure to request testimony from jurors regarding potential juror
misconduct. In a criminal case, any private communication, contact, or tampering with a juror
during a trial about the matter pending before the jury is deemed presumptively prejudicial if not
made in pursuance of known rules, instructions, and directions of the court with full knowledge of
the parties. Remmer v. United States, 347 U.S. 227, 229, 74 S. Ct. 450, 451, 98 L. Ed. 654 (1954).
The presumption is not conclusive, but the burden rests heavily upon the state to establish that
such contact with the juror was harmless to the defendant. Id.
       After the jury in this case was seated, the trial court admonished them as follows:


       [H]ere’s what I want you to understand that is critical to the functioning of our system. It is
       absolutely imperative that your decision in this case be based only on what you hear in this
       courtroom and only on what you hear when the attorneys are present, [Appellant] is present, the
       court reporter is present making a record of it. Anything else whether it’s on social media or in the
       newspaper, on the radio, on television, anything else if it’s private investigation that you do, looking




                                                          7
       words up in the dictionary, googling things, anything else, any other source of information for you
       on this is inappropriate. If you’ll keep that in mind, then we’ll be just fine.

       I know you don’t know anything except—anything specific about the case at this point, but I will
       tell you do not look anything up. Don’t look—don’t do any kind of independent investigation. If
       you’ve got a phone or social media account, you can say that you’ve been selected to sit on a jury.
       You can tell the folks at home or your employers, I’ve been selected to sit on a jury, and this is when
       we expect we’ll be done with our work. But beyond that, don’t discuss the case or anything about
       the case with anyone even among yourselves. Don’t allow anyone to talk to you about your service
       as jurors. And if somebody does, if somebody approaches you directly, let Deputy Whitmore—he’s
       down the hall. Let Deputy Whitmore or myself know that immediately, and we’ll take appropriate
       action.


       The record indicates that on the morning of the second day of trial, a discussion was had
off the record regarding a witness who was seen speaking to a juror. When the jury was brought
in, the trial court gave the following admonishment:


       I want to give—remind you of instructions that I’ve previously given you. This is a very small area
       that we’re given to work in. It’s very combined or confined. You’re going to find yourself
       inadvertently around people that are involved in the trial. Those folks are instructed that they’re not
       to have any communication with you, and it may be that you know those people from outside this
       experience. And it may seem unusual or awkward for them not to engage in conversation with you.
       But they’re directed not to, and the purpose of that is to avoid even the appearance that there might
       be some improper relationship between the participants in the trial and those of you on the jury. I’m
       going to ask that you please understand and not be offended when those folks respond to you that
       way. It’s okay to exchange casual greetings with these people. They—you know, good morning,
       what is the weather, like the rain. That kind of thing is not a problem, but beyond that, they won’t
       engage you, and if they attempt to, then I’ll ask you to remind them that you’re a juror and not to
       engage in that conversation.


       That afternoon, the State asked to put related testimony on the record. Anderson County
First Assistant District Attorney Scott Holden, who was not involved with the case, testified that
he and Investigator Kathy Stoner saw Palestine Police Officer Brandon Nicholson, a witness in
the case, talking to someone wearing a juror badge in the hallway. He further testified as follows:


       Kathy motioned him to follow us into the courthouse, come with us. It’s not about the trial. We step
       inside, immediately tell him what are you doing, you’re not supposed to be talking with a juror. And
       he said, Well, he’s been a friend of mine. I don’t think he said it was for a very long but for years,
       but they’ve known for—Were you talking about the trial? You cannot talk to a juror under any
       circumstances, stop talking to him right now, and I’m going to go tell the attorneys.


Following Holden’s testimony, Eastland asserted to the court,


       I’ve known Mr. Holden for years. If he said that he talked to the witness and the witness related to



                                                         8
          him what he just related to us, I have no questions. They were just being friends as long as they were
          not talking about the case.


The prosecutor told the court that Nicholson said he talked to another juror about the Las Vegas
shooting. She did not request further action from the court on the matter, opining that the court’s
additional admonishment was satisfactory. Eastland agreed.
          As in the previous issue, Appellant offers no reason why this ineffectiveness ground could
not be resolved without an evidentiary hearing, and we conclude that it could. Relying on its
recollection of the proceedings, the trial court could have determined that Eastland did not err by
failing to request testimony from the jurors. See TEX. CODE CRIM. PROC. ANN. art. 11.072 § 6(b).
The jurors were admonished about outside influences, and there was no indication that the
conversations with Officer Nicholson were about the trial. See Remmer, 347 U.S. at 229, 74 S.
Ct. at 451 (proscribing communication with jurors “about the matter pending before the jury”).
Furthermore, the trial court could have determined based on its recollection of the proceedings that
counsel’s error by failing to request juror testimony, if any, did not render his performance
deficient because the error was not so serious that counsel was not functioning as the “counsel”
guaranteed by the Sixth Amendment. See TEX. CODE CRIM. PROC. ANN. art. 11.072 § 6(b);
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Finally, even if the trial court determined that
counsel’s performance was deficient, it could have determined based on its recollection that the
deficient performance did not prejudice Appellant’s defense and rejected the claim on that basis.
See id.
          Because the trial court could reach reasonably correct results regarding Appellant’s fifth
alleged habeas ground without an evidentiary hearing, we conclude that the trial court did not err
by denying an evidentiary hearing on that ground. See Davila, 530 S.W.2d at 545; Salazar, 510
S.W.3d at 627. Accordingly, we overrule Appellant’s second issue.
Ground Six—Prejudicial References to and Testimony from Appellant
          In Appellant’s third issue, he argues that the trial court erred by denying an evidentiary
hearing on the issue of Eastland’s prejudicial references to him at trial and eliciting of unnecessary
prejudicial testimony from him. Appellant contends that his defense was prejudiced when
Eastland asked his age and the age he started drinking. He contends that his defense was further
prejudiced when Eastland made the following statements during closing arguments: (1) “The
second thing I want to do is apologize for [Appellant] because he wasn’t too much different today



                                                            9
than he was on the video except today he didn’t have four pints of beer,” (2) “If you want to find
[Appellant] guilty of being argumentative, disrespectful . . . uncooperative, defensive, vulgar
speech, I’m right with you,” (3) “[H]e’s a really nice guy if he doesn’t talk too much. He’s
uncooperative, defensive, argumentative, and vulgar speech. I wanted to stand up and say, Charlie
stop being a lawyer, just answer the dang question,” (4) “I place the blame for him getting arrested
on him,” (5) “So as far as the DWI case, don’t trust [Appellant],” (6) “[Appellant] screwed up with
his attitude. And you may not like [Appellant]. You may think he’s arrogant. I wouldn’t disagree
with you on that,” (7) “[Appellant] screwed it up,” (8) “Folks, we all can find him guilty of being
argumentative, obnoxious, anything like that,” (9) “Quite frankly, when he got—when he was on
the stand, I was mad. Still aggravated at him,” (10) “But when you get a lawyer who’s been
drinking in a car that’s cranked up and in gear and an officer knocks on your window, what do you
think?” and (11) “He’s just obnoxious.”
       Appellant additionally asserts in his brief that Eastland’s tone of voice and facial
expressions were “every bit as prejudicial as the words that he spoke.” However, we do not
consider this assertion because it is not proper for an appellate court reviewing a trial court’s
decision to rely upon information that is not in the appellate record. TEX. R. APP. P. 34.1 (appellate
record consists of clerk’s record and reporter’s record); see also Vargas v. State, 838 S.W.2d 552,
556 (Tex. Crim. App. 1992) (refusing to consider comparison information not in evidence in
Batson challenge review); Haner v. State, 339 S.W.2d 212 (Tex. Crim. App. 1960) (“This Court
is bound by the record as made and certified by the trial court.”)
       In support of his argument that Eastland’s “prejudicial” questions and statements rendered
his counsel ineffective, Appellant cites three cases. See Ex parte Guzmon, 730 S.W.2d 724 (Tex.
Crim. App. 1987); Ramirez v. State, 65 S.W.3d 156 (Tex. App.—Amarillo 2001, pet. ref’d);
Miller v. State, 728 S.W.2d 133 (Tex. App.—Houston [14th Dist.] 1987, pet. ref’d). In Guzmon,
the court of criminal appeals held defense counsel’s assistance ineffective based on many facts.
See Guzmon, 730 S.W.2d at 733-34. Defense counsel referred to the defendant as a “wetback”
throughout the trial. Id. at 733. Some venirepersons who expressed doubt that an illegal alien is
entitled to all the protections of a United States citizen served on the jury. Id. When the defendant
testified, defense counsel did not ask questions but instead allowed him to ramble. Id. Instead of
properly interpreting the defendant’s testimony verbatim, the interpreter paraphrased it. Id. And




                                                 10
defense counsel had difficulty communicating with the defendant prior to trial even with an
interpreter. Id.
       In Ramirez, a child sexual assault case, the court of appeals held defense counsel’s
assistance ineffective in part because defense counsel failed to object to evidence of the
defendant’s drinking habit. See Ramirez, 65 S.W.3d at 160. Defense counsel further used the
phrase “drunk Mexican” while talking about the defendant and was silent when the State
mischaracterized his statement as saying the defendant was a “drunk Mexican” and labeled him as
such. Id.
       In Miller, the court of appeals concluded that defense counsel committed many errors, the
aggregate of which prejudiced the defense. Miller, 728 S.W.2d at 135. These errors included
arguing with venirepersons, making baseless offensive arguments, attacking a witness based on
his country of origin, failing to timely discover that the trial judge previously represented the
defendant, and many other unspecified errors. Id. at 134-35.
       While these cases support the proposition that a defense counsel’s disparaging references
to the defendant or a witness may be considered when reviewing counsel’s effectiveness, they do
not compel a finding of ineffective assistance of counsel in this case. First, each of the cited cases
involves racial slurs, which are not present in this case. Second, each of the cited cases involves
factors in addition to the disparaging references that are not present in this case. Finally, unlike
the disparaging references in the cited cases, the references in this case were based on admissible
evidence that was before the jury and appear to be part of a trial strategy to mitigate the effects of
that evidence on the verdict. The record shows that Appellant was confrontational with the
arresting officers. During the investigation and arrest, Appellant cursed, refused to follow
commands, and tried to intimidate the officers by saying—falsely—that he was the city attorney.
It appears that Eastland’s strategy was to acknowledge Appellant’s offensive demeanor but
discourage the jury from convicting him on that basis.
       Other factors weigh against Appellant’s argument as well. First, besides acknowledging
Appellant’s poor attitude, Eastland also said Appellant is a decent person and he likes him. Second,
regarding the statement of “Don’t trust [Appellant],” the remainder of the statement was, “but
listen to his brother.” Appellant’s brother testified that he and Appellant agreed Appellant would
call him for a ride when he was ready to leave, supporting Appellant’s testimony that he was only
moving his car to a safer location in the parking lot while he waited for his brother. In this context,



                                                  11
a fair interpretation of the statement “Don’t trust [Appellant]” is, “You don’t have to trust
Appellant” rather than “Appellant is untrustworthy.” Finally, regarding Eastland’s questions about
Appellant’s age and the age he started drinking, there is an apparent trial strategy behind them as
well.    After asking those questions, Eastland elicited testimony that Appellant was never
previously arrested and had procured rides home many times. The implication of such testimony
is that although Appellant consumed alcohol for many years, he has been responsible about driving
while intoxicated, and was being responsible on this occasion as well.
         As in the previous issues, Appellant offers no reason why this ineffectiveness ground could
not be resolved without an evidentiary hearing, and based on the record before us, we conclude
that it could. Relying on its recollection of the proceedings, the trial court could have reasonably
determined that Eastland’s counsel was not ineffective because (1) his questions and comments
were not error but sound trial strategy, (2) his error, if any, did not render his performance deficient
because it was not so serious that counsel was not functioning as the “counsel” guaranteed by the
Sixth Amendment, or (3) the deficient performance did not prejudice Appellant’s defense. See
TEX. CODE CRIM. PROC. ANN. art. 11.072 § 6(b); Strickland, 466 U.S. at 687-89, 104 S. Ct. at
2064-65; Tong, 25 S.W.3d at 712.
         Because the trial court was able to reach reasonably correct results regarding Appellant’s
sixth alleged habeas ground without an evidentiary hearing, we conclude that the trial court did
not err by denying an evidentiary hearing on that ground. See Davila, 530 S.W.2d at 545; Salazar,
510 S.W.3d at 627. Accordingly, we overrule Appellant’s third issue.


                                                  DISPOSITION
         Having overruled Appellant’s first, second, and third issues, we affirm the trial court’s
judgment.
                                                                    BRIAN HOYLE
                                                                       Justice

Opinion delivered April 22, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)


                                                         12
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             APRIL 22, 2020


                                         NO. 12-19-00327-CR


                         EX PARTE: CHARLES WILLIAM NICHOLS



                                Appeal from the County Court at Law
                           of Anderson County, Texas (Tr.Ct.No. 13518)

                         THIS CAUSE came to be heard on the oral arguments, appellate record and
briefs filed herein, and the same being considered, it is the opinion of this court that there was no
error in the judgment.
                         It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
