      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-18-00215-CR



                                  Jennifer Zapalac, Appellant

                                                 v.

                                  The State of Texas, Appellee


    FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
    NO. 16373, HONORABLE CHRISTOPHER DARROW DUGGAN, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Jennifer Zapalac pleaded guilty to the second-degree felony offense of

manslaughter. See Tex. Penal Code § 19.04. The district court deferred adjudication of guilt and

placed Zapalac on community supervision for ten years. The State later moved to adjudicate guilt,

alleging that Zapalac had violated the terms and conditions of her community supervision.

Following a hearing on the motion to adjudicate, the district court revoked Zapalac’s community

supervision, signed a judgment adjudicating her guilt, and assessed punishment at twenty years’

confinement. In two issues, Zapalac contends that she was denied effective assistance of counsel.

We affirm.


                                           Background

               The underlying facts and procedural posture are not disputed. In September 2015,

Zapalac drove off the roadway and collided with a tree, resulting in the death of her seven-year-old
daughter Victoria. In connection with that incident, Zapalac pleaded guilty to manslaughter, a

second-degree felony, see id., and the district court sentenced her to ten years’ deferred adjudication,

120 hours of community service, and a $1,250 fine. The conditions of Zapalac’s community

supervision included, among other requirements, that she avoid the use of alcohol and illegal

substances and that she meet with a psychotherapist for two years.

                The State later moved to adjudicate guilt, alleging that Zapalac had used alcohol in

violation of the terms of her community supervision. Zapalac pleaded true to the allegations in the

State’s motion to adjudicate. At the adjudication hearing, the district court ordered a pre-sentencing

investigation, including a mental-health evaluation that defense counsel had requested. Zapalac’s

psychotherapist, Janice Moore, performed the mental-health evaluation.

                At the punishment hearing, the State offered testimony from Zapalac’s probation

officer and from an investigator from the Bastrop district attorney’s office. Zapalac’s only witness

was her mother. Near the end of the punishment proceedings, the district court confirmed, upon

defense counsel’s request, that it had received and reviewed Zapalac’s mental-health evaluation,

which was attached to the pre-sentence investigation report. Defense counsel suggested that it would

be helpful for the district court to have Moore, the author of the mental-health evaluation, testify, but

that counsel would need a recess to arrange for such testimony because counsel had no previous

contact with Moore. The district court denied the request for a recess, and both sides rested.

                During closing arguments, defense counsel referenced the mental-health evaluation

as support for Zapalac’s assertion that she was suffering from mental-health issues when she violated

the terms of her community supervision. The State’s attorney, on the other hand, criticized Zapalac



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for not producing as witnesses any of the mental-health providers that she alleged had been providing

treatment to her. After taking a short recess to consider the evidence, the district court sentenced

Zapalac to twenty years’ confinement in the Texas Department of Criminal Justice – Institutional

Division. This appeal followed.


                                              Discussion

                In two closely related issues, Zapalac asserts that she was denied effective assistance

of counsel because, with regard to mitigating punishment, her counsel failed to (1) present any expert

mental-health testimony and (2) to interview and subpoena Zapalac’s psychotherapist, Janice Moore,

as a mental-health witness.

                We review a claim of ineffective assistance of counsel under the two-pronged

standard of Strickland v. Washington, 466 U.S. 668, 687 (1984). Zapalac must first establish that

counsel’s performance was deficient. Id. This requires showing that her trial counsel made errors

so serious that counsel was not functioning as the “counsel” the Sixth Amendment guarantees. Id.

Second, Zapalac must show that the deficient performance prejudiced the defense. Id. This requires

showing that her trial counsel’s errors were so serious as to deprive the defendant of a fair trial. Id.

                Zapalac has the burden to prove ineffective assistance of counsel by a preponderance

of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). To defeat the

strong presumption of reasonable professional assistance, any allegation of ineffectiveness must

be firmly founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).




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               Here, Zapalac urges that it was necessary for her trial counsel to offer mental-health

evidence from experts or Moore to mitigate or explain why someone in her situation—i.e., stricken

with guilt, grief, and remorse from the death of her daughter by her own hands—would have violated

her probation terms by consuming alcohol. Only an expert, Zapalac contends, could provide the

court with a coherent explanation for why such a person “would have felt compelled to self-

medicate” in spite of the legal ramifications of doing so. Relatedly, Zapalac contends that only a

mental-health expert could offer the district court viable treatment options for rehabilitating her, an

otherwise “contributing and well-respected member of the community with no prior convictions.”

Her trial counsel’s failure to do so, Zapalac contends, was “well outside the range of professionally

competent assistance.”

               The record before us contains no evidence of the strategy behind trial counsel’s

actions or omissions. Although Zapalac filed a motion for new trial, the motion did not allege that

her counsel was ineffective in representing her in the adjudication proceeding. Because Zapalac did

not obtain a hearing on the motion for new trial, there was no opportunity to develop the record to

include information regarding counsel’s strategy at trial. To satisfy the first prong of Strickland on

a silent record, it must be apparent “that counsel’s performance fell below an objective standard of

reasonableness as a matter of law, and that no reasonable trial strategy could justify trial counsel’s

acts or omissions, regardless of his or her subjective reasoning.” Lopez v. State, 343 S.W.3d 137,

143 (Tex. Crim. App. 2011). This is not such a case. There are plausible reasons for not having

offered the evidence at issue here. For example, there was already a mental-health evaluation by

Zapalac’s psychotherapist, favorable to Zapalac, that the trial court acknowledged reviewing.



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Further, as the State notes, Zapalac’s trial counsel could have wanted to avoid giving the State

the opportunity to cross examine Moore, or another mental-health expert, regarding Zapalac’s

mental health when the district court already had before it Moore’s favorable written evaluation.

Accordingly, Zapalac has failed to show that her trial counsel’s performance was deficient.

               Failure of an appellant to satisfy the first prong of the Strickland test negates our need

to consider the second. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). However,

we also note that, even if Zapalac could establish the first prong of the Strickland test, she has not

shown that the deficient performance prejudiced the defense. See Strickland, 466 U.S. at 687. In

order to demonstrate that the defense was prejudiced, an appellant must show that the deficient

conduct more likely than not altered the outcome in a case. Id. at 693. This record does not support

such a showing.

               On this record, therefore, we conclude that Zapalac has failed to prove her claim of

ineffective assistance of counsel under Strickland, and we overrule her first and second issues.


                                             Conclusion

               Having overruled Zapalac’s appellate issues, we affirm the district court’s judgment.



                                               _________________________________________
                                               Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Pemberton and Field

Affirmed

Filed: August 8, 2018

Do Not Publish

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