                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00022-CR



       WILLIAM EMMETT LAWSON, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 124th District Court
                 Gregg County, Texas
               Trial Court No. 42639-B




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                               MEMORANDUM OPINION
       When William Emmett Lawson’s elderly parents’ health noticeably declined, he moved

into their home and became their sole caregiver. After approximately six years of that difficult

service, William made the fateful decision to end his own life and that of his father, Robert.

William’s plan involved locating the two men inside the truck’s cab, tying the doors of his truck

shut from the inside, and filling the cab with propane gas. When a watchful neighbor noticed

William’s plan being implemented, firefighters were summoned and broke into the truck. Seeing

his goal slipping away, William attempted to strangle Robert before firefighters could get to the

men. Both men survived the ordeal. Rather than prosecute William for attempted murder, the

State charged him with aggravated kidnapping, admittedly to maximize the possible sentence

under these facts.

       William pled guilty to the offense, and the jury assessed his sentence at nine years’

confinement, a sentence imposed by the trial court. On appeal, William contends his trial

counsel was ineffective in four respects. Because allegations of ineffective assistance of counsel

were not proven, we affirm the trial court’s judgment.

       The Sixth Amendment to the United States Constitution grants an accused the right to

have the assistance of counsel for his or her defense, a right that has been interpreted to require

the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The

right to effective assistance of counsel does not mean, however, that counsel must be errorless or

perfect. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). A conviction




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resulting from ineffective assistance of counsel is constitutionally infirm. Strickland, 466 U.S. at

688.

       To prevail on his ineffective assistance claim, William must prove by a preponderance of

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

and that it is reasonably probable that the outcome of the proceeding would have been different,

but for counsel’s unprofessional errors. See id. at 686; Ex parte Imoudu, 284 S.W.3d 866, 869

(Tex. Crim. App. 2009). Ineffective assistance of counsel claims must be firmly rooted in the

record, with the record itself affirmatively demonstrating the alleged ineffectiveness. Lopez v.

State, 343 S.W.3d 137, 142–43 (Tex. Crim. App. 2011). Failure to satisfy either prong of the

Strickland test is fatal. Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006).

Thus, we need not examine both Strickland prongs if one prong cannot be met. Strickland, 466

U.S. at 697.

       We indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable, professional assistance and was motivated by sound trial strategy. See Jackson v.

State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). “If counsel’s reasons for his conduct do not

appear in the record and there is at least the possibility that the conduct could have been

legitimate trial strategy, we will defer to counsel’s decisions and deny relief on an ineffective

assistance claim on direct appeal.” Ortiz v. State, 93 S.W.3d 79, 88–89 (Tex. Crim. App. 2002).

Rarely will a reviewing court be provided the opportunity to make its determination on direct

appeal with a record capable of providing an evaluation of the merits of ineffective assistance

claims. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). “In the majority of

                                                 3
instances, the record on direct appeal is simply undeveloped and cannot adequately reflect” the

reasoning of trial counsel. Id. at 813–14. Only in the rare case “in which trial counsel’s

ineffectiveness is apparent from the record” may the appellate court “address and dispose of the

claim on direct appeal.” Lopez, 343 S.W.3d at 143.

       William claims that his trial counsel was ineffective because counsel failed to preserve

error when the State, in opening statements, told the jury this was a murder case; counsel failed

to object to testimony from his sister that William should be incarcerated; counsel failed to

object when the State told the jury in closing arguments that William would track down and kill

Robert if William was given community supervision; and counsel failed to preserve error when

the State misstated the evidence during William’s cross-examination.

       We affirm the judgment of the trial court, because ineffective assistance of counsel has

not been established regarding trial counsel’s handling of (1) the State’s opening-statement

mischaracterization of the case as a murder case, (2) the sister’s testimony that William should

be incarcerated, (3) the State’s closing-argument suggestion that William might try again to kill

Robert if given community supervision, or (4) the State’s misstatement of evidence during its

cross-examination of William.

(1)    The State’s Opening-Statement Mischaracterization of the Case as a Murder Case

       William’s initial complaint stems from the State’s opening remarks to the jury, in which

the State characterized the case against him as one for murder. The prosecutor told the jury,

       I don’t want you to make any bones about it, and I don’t want you to be confused
       about what this case is. Mr. William Lawson is a murderer. And but for the
       brave members of the . . . Kilgore Police Department and Kilgore Fire
       Department, Robert Lawson would be dead today.
                                                4
                  ....

         You may be wondering, if this is a murder, if this -- he tried to kill him; why are
         we here on aggravated kidnapping? And it’s very simple. Aggravated
         kidnapping is a first-degree felony, it’s five years to life in prison. It’s the highest
         punishment range we have other than capital murder. It is the most akin to
         murder that we have in this charge. Attempted murder is two years to twenty
         years in prison, it’s a second-degree felony. We wanted to give you that full
         range of punishment and we wanted to say, “This man is dangerous.” And that’s
         why you have a first-degree felony that you’re looking at today. But don’t be
         confused; it’s a murder case.

Counsel for William then objected “to the characterization of this case as a murder case. The

defendant’s pled ‘guilty’ to the offense of aggravated kidnapping.” The trial court sustained the

objection “for purposes of opening statement and what the State intends to prove . . . .”

         William contends trial counsel was ineffective because counsel failed to preserve for

appeal any error with respect to the State’s inaccurate characterization of this case as one for

murder. 1     But William did object to the State’s characterization, as previously recounted.

William claims, however, that counsel’s failure to preserve error occurred in connection with the

lack of a request for a limiting instruction and in the failure to move for a mistrial.

         Counsel’s failure to seek an instruction to disregard the State’s comments may have been

made for strategic reasons. His objection had just been sustained. Counsel may have decided
1
 William also apparently suggests that counsel’s failure to object to “possible prosecutorial misconduct” by the State
for indicting and trying him for aggravated kidnapping in order to obtain a greater punishment range was ineffective
assistance of counsel. In his brief, William simply contends, “Appellant’s counsel did not make any objection
regarding possible prosecutorial misconduct in this matter; nothing is preserved for a basis of appeal in that regard.”
To the extent William intended to raise the failure to object to prosecutorial misconduct as a point of error on appeal,
we find that it has been inadequately briefed. Rule 38.1(h) of the Texas Rules of Appellate Procedure requires that a
brief contain “a clear and concise argument for the contentions made, with appropriate citations to authorities and to
the record.” TEX. R. APP. P. 38.1(h). An inadequately briefed issue may be waived on appeal. McCarthy v. State,
65 S.W.3d 47, 49 n.2 (Tex. Crim. App. 2001); see Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008)
(affirming that court has no obligation “to construct and compose” a party’s “issues, facts, and arguments ‘with
appropriate citations to authorities and to the record’”).
                                                           5
not to draw further attention to the State’s characterization of this case as one for murder.

Absent a record revealing the reasons for counsel’s decision not to seek an instruction to

disregard, we will not second guess counsel’s trial strategy through hindsight.

       The need for a mistrial in any situation is evaluated based on three factors: (1) the

severity of the misconduct involved, (2) the efficacy of any instruction by the trial court to

remedy the effect of the event on the jury, and (3) the certainty of a conviction without the

misconduct. Archie v. State, 340 S.W.3d 734, 738–39 (Tex. Crim. App. 2011) (citing Mosley v.

State, 983 S.W.2d 249 (Tex. Crim. App. 1998)). Here, none of the three factors has been

developed or explained.         It does not appear to us that the argument is “so emotionally

inflammatory that curative instructions are not likely to prevent the jury from being unfairly

prejudiced against” William. See Young v. State, 137 S.W.3d 65, 71 (Tex. Crim. App. 2004). If

counsel had sought a mistrial, it would likely have been denied, further calling the jury’s

attention to the State’s comment.

       William has failed to show that his counsel’s performance was deficient with respect to

this complaint of ineffective assistance.

(2)    The Sister’s Testimony that William Should Be Incarcerated

       William next contends that counsel was ineffective in failing to object to the testimony of

his sister, Elizabeth Warren,

             Q.      And what are -- I just have to ask you: What are your beliefs, what
       would you like to see happen to William Lawson because of what he did to your
       dad?

                A.      As much as it pains me and it hurts my -- it just hurts to have to
       say it, I think he needs jail time. I am in fear that another attempt would be made
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        on my father’s life, because he firmly believes that he does not deserve to live.
        And he believes that. My -- and my father and -- and I and Brad are all afraid that
        -- we would -- we would just be afraid for his life.

        William contends the excerpted testimony was inadmissible.          “[T]he wishes of the

victim’s family members as to the defendant’s fate fall beyond the parameters of victim-impact

evidence and are not admissible.” Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App.

2003). Victim-impact evidence is evidence “concerning the effect that the victim’s death will

have on others, particularly the victim’s family members.” Mathis v. State, 67 S.W.3d 918, 928

(Tex. Crim. App. 2002) (quoting Mosley, 983 S.W.2d at 261).

        This case does not involve victim-impact evidence. The testimony at issue was elicited

during the punishment phase of a non-capital trial. “The admissibility of evidence during ‘the

punishment phase of a non-capital trial is a function of policy rather than a question of logical

relevance.’” Ellison v. State, 201 S.W.3d 714, 719 (Tex. Crim. App. 2006) (quoting Sunbury v.

State, 88 S.W.3d 229, 233 (Tex. Crim. App. 2002)). In the past, Texas courts have held that a

defendant’s suitability for probation or his or her ability to abide by the terms and conditions of

probation are not issues in the punishment phase of trial. Ortiz v. State, 834 S.W.2d 343, 346

(Tex. Crim. App. 1992), superseded by statute, Acts of Sept. 1, 1993, 73d Leg., R.S., ch. 900,

§ 5.05, 1993 Tex. Gen. Laws 3586, 3759, as recognized in Ellison v. State, 201 S.W.3d 714,

721–22 (Tex. Crim. App. 2006); see Hardin v. State, 20 S.W.3d 84, 90 (Tex. App.—Texarkana

2000, pet. ref’d).

        In Ellison, however, the high criminal court held that, pursuant to Article 37.07,

Section 3(a) of the Texas Code of Criminal Procedure, “suitability is a matter ‘relevant to

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sentencing.’. . . when a defendant seeks community supervision.” Ellison, 201 S.W.3d at 722

(quoting TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2014)). 2 Further, “a

probation officer may give an opinion on a defendant’s suitability for probation,” not only as an

expert witness, but also as a lay witness based on his or her personal knowledge and perceptions

of the defendant. Id. at 722–23.

        Here, trial counsel did not object to testimony from a witness who had known William

his entire life and who testified that because William believed Robert did not deserve to live,

Robert’s life would be endangered if William was not given “jail time.” Counsel could have

chosen not to object to Warren’s testimony, as such testimony was seemingly based on her

personal knowledge and perceptions of William.                Even assuming this evidence was not

admissible, counsel may have failed to object for strategic reasons.               Counsel subsequently

introduced the testimony of William’s daughter, Debbie Wheelis. Wheelis testified that she

wanted her father to receive probation,

               Q.      And you understand that -- I mean, obviously you understand that
        what he’s pled “guilty” to is a -- is a first degree felony offense in Texas and he
        could face, you know, up to a very long prison sentence -- from anywhere from
        probation up to a very long prison sentence?

                A.       Yes, I do.

                Q.       Is it your desire that he be granted probation in this case?

                A.       It is.




2
 Article 37.07 of the Texas Code of Criminal Procedure governs evidence at the punishment phases and provides
that “evidence may be offered by the State and the defendant as to any matter the court deems relevant to
sentencing.” TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1).
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                Q.     Do you have any concerns whatsoever about him being involved in
        the caretaking of your one-year-old?

               A.      No. My father is the most loving, honest person that I know. And
        I know, aside from this, he’s always taken care of me, he’s always taken care of
        my family and extended family.

        Counsel could have chosen not to object to Warren’s testimony so as not to foreclose the

opportunity to offer similar testimony—albeit from a different perspective—from Wheelis.

Since it is conceivable that counsel used this strategy, we will not second guess it through

hindsight. William has failed to establish that his attorney was deficient in this regard.

(3)     The State’s Closing-Argument Suggestion that William Might Try again To Kill Robert if
        Given Community Supervision

        William next contends that counsel was ineffective in failing to object when the State

argued in closing that William would track down and kill Robert if William was given

community supervision. William claims there can be no strategy for this failing on the part of

trial counsel, but fails to analyze this point of error. In the interests of justice, we will address it.

        Though the State did not exactly argue what William claims, it did argue,

                If you put Mr. Lawson on probation, which is a scary thought, you’re
                basically giving him a license to kill . . . I tell you who thinks he is going
                to hunt those people down, are the people who have grown up with
                William, people who have dealt with William on a daily basis. His sister
                Elizabeth and his brother Bradley . . . .

As previously discussed, we cannot conclude that counsel was ineffective in choosing not to

object to Warren’s testimony. 3 William ostensibly claims his counsel was ineffective in failing


3
 Although counsel for William objected on the basis that there was no testimony from Bradley as argued by the
State, no objection was interposed to the substance of the argument.

                                                     9
to object to what he believes was improper jury argument. The Texas Court of Criminal Appeals

has recognized four proper areas of jury argument: “(1) summation of the evidence presented at

trial; (2) reasonable deduction drawn from that evidence; (3) answer to the opposing counsel’s

argument; or (4) a plea for law enforcement.” Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim.

App. 2000). In this case, the State’s argument falls within the parameters of summarizing the

evidence presented at trial and drawing reasonable deductions from that evidence. William has

failed to demonstrate the deficiency of his attorney in this regard.

(4)    The State’s Misstatement of Evidence During Its Cross-Examination of William

       William’s final claim of ineffective assistance is made in connection with his own cross-

examination. During William’s cross-examination, the State asked,

       And so on May 2nd, 2013, you take your father, you put him in the trunk of your
       car; you tie up the doors with this rope, so even if he wanted to, he couldn’t get
       out; you take this propane bottle, you put it between the two of you; you tie the
       tube to the rearview mirror; and you have this lighter?

       William’s attorney objected, indicating, “Counsel has misstated the testimony. There’s

been no evidence that he put anyone in the trunk of a car.” The State explained that it indeed

misspoke: “I thought I said ‘truck,’ in the truck.” The trial court told the jury to “recall what the

evidence and the testimony was and was not.” William’s complaint is centered on the fact that

counsel failed to pursue a ruling on his objection. Given the fact that the State conceded that it

misspoke and stated that it meant to say “truck” rather than “trunk,” counsel’s decision not to

further emphasize the matter was reasonable trial strategy. William failed to meet the first

Strickland prong on this issue.


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      We affirm the trial court’s judgment.



                                              Josh R. Morriss, III
                                              Chief Justice

Date Submitted:      January 13, 2015
Date Decided:        February 6, 2015

Do Not Publish




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