      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00559-CR



                                  Zane Lynn Barton, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
         NO. CR-13-0614, HONORABLE GARY L. STEEL, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Zane Lynn Barton was charged with aggravated assault family violence for allegedly

causing serious bodily injury to Stefanie Hunt by cutting her face and neck. See Tex. Penal Code

§§ 22.01(a) (setting out elements of assault), .02(a) (providing that assault is aggravated assault

if person causes serious bodily injury or uses or exhibits deadly weapon), .02(b)(1) (elevating

offense from second-degree felony to first-degree felony if defendant caused serious bodily injury

to someone whose relationship with defendant is governed by Family Code and if defendant used

deadly weapon during assault). After a trial, the jury found him guilty of the offense. During the

punishment phase, Barton pleaded true to an enhancement allegation that he had previously been

convicted of a felony, and the jury imposed a punishment of life imprisonment. See id. §§ 12.32

(listing permissible punishment range for first-degree felony), .42(c) (enhancing punishment range for

individual who had previously been convicted of felony). On appeal, Barton contends that he was

denied effective assistance of counsel. We will affirm the district court’s judgment of conviction.
                                           DISCUSSION


Effective Assistance of Counsel

               In his first issue on appeal, Barton asserts that he “was denied the effective assistance

of counsel as a result of [his] trial counsel’s multiple acts of deficient performance.”

               To succeed on an ineffectiveness claim, a defendant must overcome the strong

presumption that his trial “counsel’s conduct falls within the wide range of reasonable professional

assistance” and must show that the attorney’s “representation fell below an objective standard of

reasonableness . . . under prevailing professional norms” and that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 688, 689, 694 (1984). Evaluations of effectiveness are

based on the totality of the representation. Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App.

2013); see also Davis v. State, 413 S.W.3d 816, 837 (Tex. App.—Austin 2013, pet. ref’d) (providing

that assessment should consider cumulative effect of counsel’s deficiencies). Furthermore, even

though a defendant is not entitled to representation that is error free, a single error can render the

representation ineffective if it “was egregious and had a seriously deleterious impact on the balance

of the representation.” Frangias, 450 S.W.3d at 136.

               In general, direct appeals do not provide a useful vehicle for presenting

ineffectiveness claims because the record for that type of claim is usually undeveloped. Goodspeed

v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). “This is true with regard to the question of

deficient performance . . . where counsel’s reasons for failing to do something do not appear in the

record.” Id. (stating that “counsel’s conduct is reviewed with great deference, without the distorting

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effects of hindsight”). In addition, before their representation is deemed ineffective, trial attorneys

should be afforded the opportunity to explain their actions. Id. If that opportunity has not been

provided, as in this case, an appellate court should not determine that an attorney’s performance was

ineffective unless the conduct at issue “was so outrageous that no competent attorney would have

engaged in it.” See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

                When presenting this issue on appeal, Barton refers to three acts that he asserts

constitute ineffective assistance of counsel. First, he contends that his attorney “failed to investigate

[his] mental health in regards to his competency and/or sanity to stand trial” and that “there was

considerable evidence known to trial counsel that would lead a reasonable attorney to investigate

further.” See Ex parte Martinez, 195 S.W.3d 713, 721 (Tex. Crim. App. 2006). In particular, he

notes that the appointed attorney that he had before retaining the services of the attorney at issue filed

a motion requesting a mental-health evaluation to ascertain whether he was sane at the time of the

offense and whether he was mentally competent to stand trial and that the motion states that he “has

been prescribed psychotropic medications” in the past. In addition, Barton points to the testimony

of Detective Richard Mazanin, who explained that during his interview of Barton after the offense,

Barton seemed uncomfortable and fidgety and was mumbling things to himself. Moreover, Barton

highlights the testimony from Officer Mazanin in which he related that Barton kept asking if he was

going to be arrested and later asked “is that for me?” when an officer holding a ticket book walked

by. Next, Barton points to portions of testimony presented at trial demonstrating that he was homeless

and living under a bridge at the time of the offense. In light of the preceding, Barton contends that

there was evidence that he was suffering from a mental-health issue and that his trial attorney should

have investigated the matter.

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                As a preliminary matter, we note that a defendant is incompetent to stand trial only

if he does not have “sufficient present ability to consult with [his] lawyer with a reasonable degree

of rational understanding” or “a rational as well as factual understanding of the proceedings against”

him. Tex. Code Crim. Proc. art. 46B.003(a). Moreover, a “defendant is presumed competent to

stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance

of the evidence.” Id. art. 46B.003(b). Similarly, “Texas law . . . presumes that a criminal defendant

is sane and that he intends the natural consequences of his acts.” Ruffin v. State, 270 S.W.3d 586,

591-92 (Tex. Crim. App. 2008). However, “Texas law . . . excuses a defendant from criminal

responsibility if he proves, by a preponderance of the evidence, the affirmative defense of insanity.”

Id. at 592; see also Tex. Penal Code § 8.01 (explaining that it “is an affirmative defense to

prosecution that, at the time of the conduct charged, the actor, as a result of severe mental illness or

defect, did not know that the conduct was wrong”).

                Turning to the issue in this case, although Barton highlights that his prior appointed

attorney requested a mental-health evaluation, the record before this Court is silent regarding

whether that evaluation was ever performed. However, although the request for a mental-health

evaluation stated that Barton had been on psychotropic medications, nothing in the request or in

the remainder of the record indicates that Barton was unable to consult with his counsel or

understand the nature of the proceedings against him. Cf. Iniquez v. State, 374 S.W.3d 611, 617

(Tex. App.—Austin 2012, no pet.) (applying bona-fide standard from previous version of statute and

explaining that evidence of history of mental illness does not necessarily compel requirement that

competency determination be made if it does not show that defendant is not currently capable of



                                                   4
communicating with his lawyer or understanding nature of proceedings); Hobbs v. State, 359 S.W.3d

919, 925 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (noting that history of mental illness

and of being on psychiatric medications is insufficient “to warrant a competency inquiry absent

evidence of a present inability to communicate with his attorney or understand the proceedings”).

               Furthermore, as mentioned above, Barton points to testimony indicating that he was

homeless at the time of the offense and that he was fidgety and was mumbling to himself during his

interview as support for his ineffectiveness claim. However, the behaviors referenced by Barton

regarding his interactions with the police are not inconsistent with someone who is nervous or afraid

that he is going to be arrested, and nothing in the testimony referred to by Barton suggests that he

was incapable of understanding that the conduct at issue was wrong. See Tex. Penal Code § 8.01.

Moreover, although the video was not played for the jury, a recording of Barton’s interview with the

police was played for the district court. In the video, Barton seems to be talking to himself while

waiting for the police to enter the interview room, but although the content of his statements is not

always decipherable, the portions that are clear indicate that he was frustrated with the situation

and with being present at the police station. Furthermore, Barton remained seated throughout the

recording until he decided to leave. When the police officers interacted with Barton, he responded

to their questions appropriately and clearly communicated his desire to leave the police station. In

addition, he articulately described the bridge under which he was currently living, explained why he

wanted to leave, and rejected an offer made by one of the officers to give him a ride. Further,

nothing in the remainder of the record suggests that on the day of the offense Barton did not

understand the events that had transpired, could not respond to questions posed by the officers, or

was unable to control himself during his interactions with the police.

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               Moreover, although the issue of Barton’s competency was not specifically addressed

by the district court during the trial proceedings, we note that the record in this case demonstrates

that many of the factors relied on by courts when making competency determinations indicated that

Barton was competent. Under the Code of Criminal Procedure, competency determinations are

based on, among other factors, the ability of the defendant to perform the following:


       (A) rationally understand the charges against the defendant and the potential
       consequences of the pending criminal proceedings;

       (B) disclose to counsel pertinent facts, events, and states of mind;

       (C) engage in a reasoned choice of legal strategies and options;

       (D) understand the adversarial nature of criminal proceedings;

       (E) exhibit appropriate courtroom behavior; and

       (F) testify.


Tex. Code Crim. Proc. art. 46B.024(1).

               The record before this Court reveals that Barton exhibited appropriate courtroom

behavior throughout all of the proceedings without a single outburst, and there is no indication in

the record that Barton engaged in any improper behavior outside the courtroom during the pendency

of the trial. See Ex parte Lahood, 401 S.W.3d 45, 50-52 (Tex. Crim. App. 2013) (concluding in

habeas context that applicant was denied effective assistance of counsel for failing to investigate

applicant’s mental health where record showed that multiple family members informed attorney of

applicant’s history of mental illness, demonstrated that applicant had attempted suicide while in jail,

and revealed that applicant “engaged in multiple outbursts and claimed that he was not receiving his

                                                  6
required psychoactive medications in jail”). Moreover, Barton complied with instructions from the

district court during voir dire to not walk toward a certain door until after the jury had left the room.

Furthermore, during the trial, Barton answered appropriately when asked how he wanted to plead

to the charges against him, stood up when instructed to for the purpose of entering a plea to the

enhancement allegation, and answered coherently when the district court questioned him about his

desire to testify and about whether he understood the potential consequences of testifying. In

addition, although the contents of the conversations were not transcribed, the record does indicate

that Barton’s attorney consulted with him throughout the trial.

                Based on the record before this Court and given our standard of review, we must

conclude that Barton has not shown that the alleged failure to investigate was unreasonable in these

circumstances or was so egregious that no competent attorney would have performed similarly. See

Ex parte Martinez, 195 S.W.3d at 721 (explaining that reasonableness of decision not to investigate

must be considered in light of all of circumstances and assessed by applying heavy measure of

deference to attorney’s decisions).

                Second, Barton urges that his trial attorney was ineffective for failing to convey a

plea-bargain offer that was made by the State. As support for his assertion that his counsel never

informed him of the offer, Barton notes that “[t]he record is void of any oral or written record that

[he] was made aware of the plea bargain in the case and the serious consequences of rejecting such

plea bargain” and insists that Barton did not become aware of the offer until his appellate counsel

informed him after the trial was over. Moreover, he insists that had he been made aware of the plea

offer, there is a reasonable probability that he would have accepted the offer, that the prosecution



                                                   7
would not have withdrawn the offer, and that the district court would have accepted the plea.

Cf. Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013) (setting out what applicant for

writ of habeas corpus must show to establish prejudice in claim that his attorney was ineffective for

failing to convey plea-bargain offer).

                However, although Barton correctly notes that nothing in the record before this

Court indicates that Barton’s attorney disclosed to Barton the terms of a plea offer, the record is also

silent regarding the existence of any plea offer. Accordingly, we cannot conclude that Barton has

overcome the strong presumption that his trial attorney’s performance fell within the wide range

of reasonable professional assistance, has shown that his attorney’s representation fell below an

objective standard of reasonableness, or has demonstrated that there has been a failure so outrageous

that no competent attorney would have made it. Cf. Piland v. State, 453 S.W.3d 473, 474-76 (Tex.

App.—Texarkana 2014, pet. dism’d) (addressing issue of whether trial counsel was ineffective

where State agreed that counsel did not communicate plea offer to client but still overruling issue

because defendant failed to show that he was prejudiced by alleged error); Rodriguez v. State,

424 S.W.3d 155, 157-60 (Tex. App.—San Antonio 2014, pet. granted) (upholding on direct appeal

trial court’s determination that trial counsel was ineffective for failing to adequately advise defendant

about plea bargain where motion for new trial contained affidavit from trial counsel stating “that

this was his first criminal jury trial and that he provided ineffective assistance due to his lack of

experience and knowledge”).

                Finally, Barton contends that his trial counsel was ineffective for announcing to the

jury during the punishment phase that Barton intended to testify before the district court recessed for



                                                   8
the day “and then the next day did not have Mr. Barton testify.” Moreover, Barton asserts that “[t]he

record does not contain any evidence that something had changed between the moment in time that

trial counsel was prepared to put . . . Barton on the stand and the next morning, when trial counsel

did not put . . . Barton on the stand; therefore there cannot be any strategy behind this action.”

Furthermore, although recognizing that the statements regarding his decision not to testify were

conveyed by his own attorney, Barton likens his attorney’s statements to an impermissible comment

on his desire to not testify in this case.

                As an initial matter, we note that we disagree with Barton’s assertion that the lack of

a record on this matter compels a conclusion that there could have been no sound strategy involved

in the choices and decisions at issue. This seems particularly true in this case where the limited

record before this Court indicates that Barton expressed the desire to testify and then changed his

mind later. See Moore v. Johnson, 194 F.3d 586, 605-06 (5th Cir. 1999) (explaining in appeal of

habeas case asserting ineffective assistance of counsel that defendant “is presumed to be the master

of his own defense”). As pointed out by Barton, at the end of the second day of trial and immediately

after the State rested its case, the district court asked his trial counsel if any witnesses would be

testifying for the defense for scheduling purposes, and his attorney responded that Barton would be

testifying. After Barton’s counsel informed the district court of Barton’s intentions, the district court

excused the jury for the day. Outside the presence of the jury but before the court recessed for the

day, the district court asked Barton specifically if he desired to testify and reminded Barton of the

consequences of agreeing to testify, and Barton responded that he wanted to testify. Later, the

district court instructed Barton’s attorney to clearly convey the potential ramifications of testifying



                                                   9
during the punishment phase of the trial to ensure that Barton was making an informed decision.

Furthermore, the record reveals that on the following morning, the district court learned that Barton

no longer wished to testify and conferred with the parties regarding what type of instruction, if any,

should be given to the jury regarding Barton changing his mind. Cf. Archie v. State, 221 S.W.3d

695, 700 (Tex. Crim. App. 2007) (concluding that jury instruction sufficiently ameliorated any

potential harm from prosecutor’s comment on defendant’s failure to testify during punishment

phase); Moore v. State, 999 S.W.2d 385, 405-06 (Tex. Crim. App. 1999) (explaining that

presumption that instruction to disregard does not cure prosecution’s comment on defendant’s failure

to testify “‘has been eroded to the point that it applies only to the most blatant examples’” (quoting

Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995))). After the jury was brought into

the courtroom, the district court informed the jury that Barton had changed his mind and decided

not to testify and reminded the jury that they cannot hold that decision against him.

               In light of this record and given that the limited information presented to us indicates

that the decisions regarding whether to testify or not were made by Barton himself and that Barton

changed his mind after the district court asked his attorney if the defense would be calling any

witnesses, we cannot conclude that any alleged error stemming from Barton’s attorney’s statement

in front of the jury that Barton wanted to testify was so egregious that no competent attorney would

have performed it.

               Having determined that the record is not sufficiently developed regarding Barton’s

alleged claims of ineffectiveness, we need not further address the matter, but we do note that

effectiveness challenges must be considered in light of “the totality of the representation” provided



                                                 10
by the attorney. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). During voir dire,

Barton’s attorney discussed with the venire panel the presumption of innocence and the types of

evidence that might be presented during the trial, questioned the panel regarding their ability to be

fair and unbiased and to render a verdict based on the evidence, argued that members of the panel

should be excused for cause, and exercised his peremptory challenges. In the innocence or guilt

phase of the trial, Barton’s trial attorney emphasized in his opening statement that Barton is

presumed innocent and that the State must prove its case beyond a reasonable doubt and argued that

the evidence will not show that an offense occurred beyond a reasonable doubt. In addition, Barton’s

trial attorney extensively cross-examined the State’s witnesses, made several successful objections to

the questions posed by the State, and fought successfully against the State’s objection to his decision

to question Hunt regarding her prior drug use. During his closing, Barton’s attorney discussed the

evidence that was presented, mentioned that no evidence was recovered from the crime scene, talked

about Hunt’s history of drug use, pointed out inconsistencies between Hunt’s testimony and the

statement that she initially gave to the police, argued that Hunt might have been assaulted by

someone else, noted that Hunt did not say that Barton was the assailant when she was initially treated

at the hospital, and urged that Hunt did not decide to accuse Barton of the assault until after she went

to her parents’ home.

                In the punishment phase of the trial, Barton’s attorney cross-examined the State’s

witnesses. Moreover, in his closing, he explained that Barton accepted responsibility for his actions;

asked the jury not to sentence Barton to life imprisonment; pointed out that although Barton had an

extensive criminal history, only one of those prior crimes was a felony; emphasized that Barton had



                                                  11
no prior convictions for assault of any kind; discussed the role that alcohol and drugs might have

played in this offense; asserted that there was no evidence suggesting that Barton would ever commit

this type of offense again; and argued that the injuries sustained by the victim did not warrant the

imposition of a life sentence.

                 For all of these reasons, we overrule Barton’s issue on appeal.


                                          CONCLUSION

                 Having overruled Barton’s issue on appeal, we affirm the district court’s judgment

of conviction.




                                               David Puryear, Justice

Before Justices Puryear, Goodwin, and Bourland

Affirmed

Filed: August 4, 2015

Do Not Publish




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