AFFIRM; and Opinion Filed June 17, 2014.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00513-CR

                     JULIA ROSE DECATUR-SCHRADER, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the 416th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 416-80222-2012

                             MEMORANDUM OPINION
                          Before Justices Bridges, O'Neill, and Brown
                                   Opinion by Justice Brown
       Appellant Julia Rose Decatur-Schrader was charged by indictment with aggravated

assault with a deadly weapon. A jury found appellant guilty and assessed her punishment at

eight years’ confinement. In two issues on appeal, appellant contends she received ineffective

assistance of counsel that denied her the right to testify during the punishment phase and thus the

trial court erred in failing to grant her a new trial on punishment. We affirm the trial court’s

judgment.

       During the guilt/innocence phase of the trial, the evidence showed that in September

2011, appellant was living temporarily with her ex-husband, Scott Schrader, and their eleven-

year-old daughter, A.S., in Scott’s Plano apartment. One night, appellant left A.S. alone in the

apartment to attend a concert in Dallas. Appellant had told Scott she was taking A.S. to the

concert with her, so he had gone out with his brother. When Scott returned home at about 1:00
a.m., he found A.S. home alone. Scott texted appellant and told her she needed to move out.

Scott then told A.S. to go to bed, and he took his dog out to a courtyard in the center of the

apartment complex. A.S., thirteen at the time of trial, testified that while her dad was in the

courtyard, appellant returned to the apartment and was angry. Appellant told A.S., “I will stab

him if I have to,” and lifted her shirt to show a knife in her waistband. Appellant left the

apartment.

       Appellant went out to the courtyard and began screaming and yelling at Scott. She then

began to hit him in the head with her fists, causing him to bleed. From the balcony of her

father’s apartment, A.S. witnessed her mother hitting her father. Witnesses at another apartment

called 911 to report the attack. Appellant left the courtyard momentarily. When she returned

Scott’s back was to her, and she stabbed him once in the back with a hunting knife. The entire

incident in the courtyard was audio-recorded on appellant’s cell phone. The recording was

admitted into evidence and played for the jury. After the stabbing, police found appellant and

A.S. walking briskly down a nearby street.

       Scott’s wound was “fairly large,” and he was hospitalized for several days as a result.

The knife narrowly missed his aorta, which would have killed him. Scott nevertheless testified

that he did not want appellant to be in jail.

       The defense presented several witnesses during the guilt/innocence phase of trial.

Appellant did not testify. The jury found appellant guilty of aggravated assault with a deadly

weapon.

       At the punishment phase, the State did not present any additional evidence. The defense

called Scott, who testified that probation would be an appropriate punishment for appellant. He

also stated he thought appellant needed psychiatric help and that she could get the help she

needed on probation. The defense then called Marvin Small, who had dated appellant for about

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six months after she and Scott divorced. According to Small, it appeared that Scott was stalking

appellant.

       Then, defense counsel indicated he was going to call appellant as a witness, but asked to

put something on the record first. Outside the presence of the jury, appellant gave the following

testimony:

       Q      Okay. You understand at this point that Scott, the victim, has already
       suggested to the jury that he thinks probation would be appropriate?

       A      Yes.

       Q      I am telling you here in open court that in all my heart and all my
       professional opinion I believe that jury is going to give you probation. Do you
       understand that?

       A      Yes.

       Q      And you are telling me that there are things you want them to know?

       A      Yes.

       Q      No matter what?

       A      Yes.

       Q       Please pardon me, but I don’t think I’ve driven this point home to you
       sufficiently enough. You are aware that if you take that stand there is a statistical
       possibility that you will end up with prison time?

       A      Why would I be aware of that?

       Q       I am trying to explain to you, I believe with all my heart and soul, and I
       could be correct - - wrong, but Mr. Schrader asked for probation. And if he
       asked for it, there is an extremely strong - - and I am telling you here in open
       court in front of everybody, I believe you’re going to get probation.

       A        Nothing Mr. Schrader said so far was true, so why would I believe what he
       said is true?

       Q      You don’t have to. The jury does. My point is, I know you want to finish
       this. You want to tell him he is wrong. But if you do so - -

       A      No. No. I want to talk to the jury.

       Q      I am making my last plea to you as your attorney. I am telling you, do not
       speak to this jury. Point blank, I am telling you, it is a mistake. It is your
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       decision and your decision alone, but I am telling you, in my professional opinion,
       you take that stand, you are going to prison. You do not take that stand, you will
       have probation. And I leave it to you. Decide now, please.

       After an off-the-record discussion, the following occurred:

               THE COURT: All right. We have one more witness from the defense.

                Ms. Schrader, just to make it abundantly clear, I want to cover a few areas
       on the record. [Defense counsel] has told you his opinion. And I don’t want you
       to discuss anything that you and he have discussed, but it is ultimately your
       decision as to whether or not to testify in a case. It’s my decision, if there’s a
       proper objection, what testimony to allow in. But nobody knows what this jury is
       going to do. As a prosecutor and as an attorney for many years before I was a
       judge, I found it impossible, foolhardy, to try to guess what a jury is going to do.
       There’s no way to know. So I want to make sure that you understand that
       [defense counsel], with his experience, believes what he thinks is best. But he is
       not - - does not know what the jury is going to do. It’s ultimately going to be their
       decision, and your decision has to be based on the information you have and the
       advice of counsel, independent of any hope of what the jury will or will not do.
       You understand that?

               THE DEFENDANT: Yes.

       The defense went on to call Eric Harter, a close friend of appellant’s, who testified that to

his knowledge appellant had never been convicted of a felony in any state. Appellant did not

testify. In closing arguments, defense counsel asked for probation, and the prosecutor asked for

an eight-year sentence. The jury assessed punishment at eight years’ confinement.

       Represented by new counsel, appellant filed a motion for new trial in which she alleged

she received ineffective assistance of counsel. She asserted trial counsel was ineffective when he

advised her she would go to prison if she testified and would get probation if she did not. At the

hearing on the motion for new trial, appellant testified that she wanted to testify in the

punishment phase and, based upon counsel’s advice that she would go to prison if she testified,

she decided not to testify. In the affidavit attached to her motion for new trial, appellant stated

her attorney’s advice compelled her to make the decision not to testify.

       According to her affidavit and her testimony at the new trial hearing, appellant would

have presented mitigating evidence. She would have told the jury that after she graduated from
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high school, she joined the Army and achieved the rank of sergeant. She served as military

police and was in the first Gulf War. After seven years in the Army, she was honorably

discharged and then served with the National Guard in Kentucky. She attended the University of

Kentucky and has a degree in Health Administration. When she moved to Dallas, she became a

realtor. She would have told the jury about the negative effect incarceration would have on her

relationship with A.S. Since 2005, appellant has seen a psychiatrist for treatment of depression,

anxiety, and ADHD. Doctors also told her she may be bipolar. She took various medications for

these conditions, but was not on her medications at the time of the stabbing. She would have

disclosed to the jury that she had a DWI conviction in Florida for which she received probation.

She was aware that some drug charges pending in Collin County may have come out as well.

Appellant would have told the jury she respected their verdict and would comply with any

conditions of probation.

       Appellant testified she understood it was her Constitutional right not to testify at trial.

She recalled her trial counsel telling her that decision was hers and hers alone. She also recalled

him telling her, in his opinion, she would be sent to prison if she testified. She further recalled

her attorney saying he was leaving the decision to her.

       Appellant’s trial counsel testified that he believed the advice he gave appellant about

testifying was sound. He stated, “Based on what I knew from that day, the reactions of the

jurors, I stand by the decision and the advice that I handed, yes.” When asked what the strategy

was for giving appellant that advice, counsel testified that because the victim testified appellant

should receive probation and the State did not present any witnesses, “It was our case to lose at

that point.” Counsel stated, “I could look at the jury, I assessed their opinions, I assessed their

facial reactions, and I decided that there was nothing that we could do beyond that point but

make it worse.” Counsel stated later that when the victim took the stand and “looked straight at

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that jury and said, ‘She needs help, I think she should have probation,’ in my opinion that is - -

you just got the gift. Leave it alone.”

          When asked if he had given thought to presenting the evidence appellant wanted to

present, counsel stated he did. His concern about appellant’s military background was that it

showed “an ability to self-defense” and would actually hurt appellant in the long run. Counsel

further stated that he could not remember whether appellant ever told him she was seeing a

psychiatrist. Trial counsel also indicated that appellant and Scott had been in a custody battle in

court. He stated there was “a lot more that could come out in a family law case than in a

criminal matter,” and he did not think those allegations needed to come before the jury. Counsel

was aware the Florida conviction was likely to be used as impeachment evidence.

          The State’s attorney asked counsel to describe appellant’s demeanor during Scott’s

testimony. Counsel responded, “If I may be so bold, the jury was staring at us, and I was

uncomfortable with what they were seeing.” When asked if his advice not to testify was based

on his “experiences in talking with [appellant] in the past, and [his] experiences or [his]

observations of her reactions and actions during trial,” counsel said that was a fair statement.

Counsel testified he was not trying to unduly influence appellant regarding her right to testify.

          In her first issue on appeal, appellant contends the trial court erred in failing to grant a

new trial on punishment because she received ineffective assistance of counsel. Appellant

admits in her brief that it is undisputed she knew she had a right to testify and that she had that

right regardless of her attorney’s advice. She asserts here, as she did in the trial court, that trial

counsel’s advice unduly influenced her decision not to testify. 1

          1
              Appellant cites the State Bar of Texas Performance Guidelines for Non-Capital Criminal Defense Representation. Guideline 7.5(C)
provides, “The decision to testify rests solely with the client, and counsel should not attempt to unduly influence that decision.” Performance
Guidelines for Non-Capital Criminal Defense Representation 7.5(C) (State Bar of Tex. 2011). Prevailing norms of practice as reflected in bar
association standards are guides to determine what is reasonable, not “inexorable commands.” Padilla v. Kentucky, 559 U.S. 356, 366-67 (2010);
see In re McCann, 422 S.W.3d 701, 707 (Tex. Crim. App. 2013) (“guidelines are only persuasive authority”).




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       A defendant has a right to testify at her own trial, and such a right is fundamental and

personal to the defendant. Johnson v. State, 169 S.W.3d 223, 235 (Tex. Crim. App. 2005);

Agosto v. State, 288 S.W.3d 113, 116 (Tex. App.—Houston [1st Dist.] 2009, no pet.). Defense

counsel shoulders the primary responsibility to inform the defendant of her right to testify,

including the fact that the ultimate decision belongs to the defendant. Johnson, 169 S.W.3d at

235. Strickland v. Washington provides the appropriate framework for addressing an allegation

that the defendant’s right to testify was denied by defense counsel. Id.

       To prevail on a claim of ineffective assistance of counsel, an appellant must show the

following: 1) counsel’s performance fell below an objective standard of reasonableness; and 2) a

reasonable probability exists that, but for counsel’s errors, the result would have been different.

Strickland v. Washington, 466 U.S. 668, 687-88 (1984); see Andrews v. State, 159 S.W.3d 98,

101-02 (Tex. Crim. App. 2005). Judicial review of a claim of ineffective assistance of counsel

must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). When an appellant presents her

ineffective assistance claim to the trial court in a motion for new trial, an appellate court analyzes

this issue as a challenge to the denial of the motion for new trial. See Charles v. State, 146

S.W.3d 204, 208 (Tex. Crim. App. 2004), superseded by statute as stated in State v. Herndon,

215 S.W.3d 901 (Tex. Crim. App. 2007). As such, an appellate court reviews the Strickland test

through an abuse of discretion standard. We do not substitute our judgment for the trial court’s,

but rather we decide whether the trial court’s resolution of the ineffective assistance claim was

arbitrary or unreasonable. Id. We must view the evidence in the light most favorable to the trial

court’s ruling and presume that all reasonable factual findings that could have been made against

the losing party were made against that losing party. Thus, a trial court abuses its discretion in

denying a motion for new trial only when no reasonable view of the record could support the

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trial court’s ruling. Id. At a motion for new trial hearing, the trial court alone determines the

credibility of the witnesses. Colyer v. State, No. PD-0305-13, 2014 WL 1686939, at *3 (Tex.

Crim. App. Apr. 30, 2014).

       Here, the trial court could have reasonably determined trial counsel’s advice did not

amount to a denial of appellant’s right to testify and thus did not fall below an objective standard

of reasonableness. Trial counsel felt very strongly that it would be a mistake for appellant to

testify. He went so far as to state that appellant would get probation if she did not testify and

would go to prison if she did. But the record reflects he warned appellant that he could be

wrong. The record also reflects counsel informed appellant “it was [her] decision and [her]

decision alone.” Further, at the hearing on her motion for new trial, appellant testified she

recalled counsel telling her the decision whether to testify was hers alone and recalled him

leaving that decision to her. And, while the trial court had no duty to do so, see Johnson, 169

S.W.3d at 235, it reinforced to appellant that it was ultimately her decision whether or not to

testify and that there was no way to predict what a jury would do. Appellant told the court she

understood this. For these reasons, the trial court, who presided over the trial and was judge of

the credibility of the witnesses at the new trial hearing, could have found that appellant, who

admittedly knew she had the right to testify despite her attorney’s recommendation not to, was

not unduly influenced by her attorney and made her own decision not to testify. Cf. id. at 226-27

(defendant deprived of right to testify where he was unaware he had final authority to make

decision to testify and counsel did not inform defendant he could testify against counsel’s

wishes).

       To the extent appellant contends that trial counsel was ineffective for recommending she

not testify, appellant has not shown that recommendation fell below an objective standard of

reasonableness. At the motion for new trial hearing, defense counsel explained in detail his

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strategic choices. Because the State did not present any punishment evidence and the victim had

recommended probation, counsel thought appellant’s testimony could only hurt her at that point.

Further, had appellant testified, she ran the risk of having further negative information come out

about her DWI conviction, pending drug charges, and custody battle with Scott. Although

appellant asserts she would have offered evidence in mitigation of punishment, counsel thought

appellant’s military service may have worked against her and he did not remember her telling

him she was seeing a psychiatrist. And, based on appellant’s comment during the punishment

phase that nothing Scott had said was true, as well as counsel’s testimony suggesting appellant’s

demeanor during Scott’s testimony was inappropriate, it did not appear appellant was ready to

take responsibility before the jury for her actions. The trial court was in the best position to

evaluate appellant’s demeanor at trial and the validity of counsel’s trial strategy. The court could

have reasonably concluded counsel’s recommendation that appellant not testify was based on

reasonable trial strategy. The trial court did not abuse its discretion in denying appellant’s

motion for new trial on grounds that appellant failed to meet the first prong of Strickland.

       In her second issue, appellant presents the question of how to analyze harm in this case.

She contends the Texas Constitution provides more protection than the United States

Constitution regarding the right to testify. As such, appellant argues, the denial of the right to

testify is structural error to which a more relaxed harm standard applies. She asserts she is not

required to show a reasonable probability she would have received a lesser sentence; instead, she

is only required to show that she would have availed herself of the right to testify. We note that

in Johnson, the court of criminal appeals held that the denial of the right to testify is not

structural error. Id. at 237. Moreover, because we have concluded appellant did not meet the

first prong of Strickland, we need not conduct a harm analysis under the second prong.

Appellant’s second issue is without merit.

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       We affirm the trial court’s judgment.




                                                  /Ada Brown/
                                                  ADA BROWN
                                                  JUSTICE


Do Not Publish
TEX. R. APP. P. 47

130513F.U05




                                               –10–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

JULIA ROSE DECATUR-SCHRADER,                           On Appeal from the 416th Judicial District
Appellant                                              Court, Collin County, Texas
                                                       Trial Court Cause No. 416-80222-2012.
No. 05-13-00513-CR         V.                          Opinion delivered by Justice Brown.
                                                       Justices Bridges and O'Neill participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 17th day of June, 2014.




                                                   /Ada Brown/
                                                   ADA BROWN
                                                   JUSTICE




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