                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-465-CR


JAMES ARTHUR NEWELL                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

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             FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      A jury found Appellant James Arthur Newell guilty of engaging in

organized criminal activity and assessed his punishment at life imprisonment.

In four issues, Newell asserts that he received ineffective assistance of counsel.

We affirm.



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          … See Tex. R. App. P. 47.4.
                    II. Factual and Procedural Background

      In 2006, three members of the Aryan Brotherhood attacked and

repeatedly stabbed James Padgett. Padgett sustained wounds that left him

incapacitated until his death nearly one year later. Newell was not one of the

three individuals who attacked Padgett; however, the State introduced evidence

that Newell, an alleged member of the Aryan Brotherhood, had ordered the

attack on Padgett in retaliation for Padgett supplying methamphetamine to

Newell’s sister. The State charged Newell with engaging in organized criminal

activity. After a trial on the merits, the jury found Newell guilty and sentenced

him to life. This appeal followed.

                     III. Ineffective Assistance of Counsel

      In four issues, Newell argues that he was denied effective assistance of

counsel.   Specifically, Newell claims that his trial counsel (1) failed to call

witnesses material to the defense, (2) failed to satisfy an objective standard of

reasonableness with his trial performance, (3) failed to conduct any form of

pretrial investigation, and (4) made cumulative decisions at trial that resulted in

Newell being denied a fair and impartial trial.

A. Standard of Review

      To establish ineffective assistance of counsel, an appellant must show by

a preponderance of the evidence that his counsel’s representation fell below the

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standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different.   Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.

2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v.

State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).

      In evaluating the effectiveness of counsel under the first prong, we look

to the totality of the representation and the particular circumstances of each

case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance

was reasonable under all the circumstances and prevailing professional norms

at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S.

Ct. at 2065. Review of counsel’s representation is highly deferential, and the

reviewing court indulges a strong presumption that counsel’s conduct fell within

a wide range of reasonable representation.       Salinas, 163 S.W.3d at 740;

Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on

direct appeal to fairly evaluate the merits of an ineffective assistance claim.

Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on

direct appeal is undeveloped and cannot adequately reflect the motives behind

trial counsel’s actions.”   Salinas, 163 S.W.3d at 740 (quoting Mallett, 65

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S.W.3d at 63).        To overcome the 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.”      Id. (quoting Thompson, 9 S.W.3d at 813).             It is not

appropriate for an appellate court to simply infer ineffective assistance based

upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432

(Tex. Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial with

a reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other

words, appellant must show there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.   Id. at 694, 104 S. Ct. at 2068.       A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Id., 104 S. Ct.

at 2068. The ultimate focus of our inquiry must be on the fundamental fairness

of the proceeding in which the result is being challenged. Id. at 697, 104 S.

Ct. at 2070.




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B. Discussion

      Some of Newell’s issues contain sub-issues; many of his issues and sub-

issues overlap. We will address all of Newell’s issues and sub-issues in the

order they are argued.

      1. Failure to Call Witnesses

      As part of his first issue, and as a sub-issue under his second and third

issues, Newell complains that he received ineffective assistance of counsel

because his trial attorney failed to call any witnesses material to his defense.

However, contrary to Newell’s complaint, our review of the record shows that

Newell’s sister—who was also the victim’s girlfriend—took the stand as a

witness for the defense and testified that she believed her mother was

responsible for the attack on Padgett.     Furthermore, Newell has failed to

articulate who his trial attorney should have called as witnesses and what they

would have testified to that would have helped his case. See King v. State,

649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (holding that an appellant who

complains about trial counsel’s failure to call witnesses must show that

witnesses were available and that the witnesses’ testimony would have

benefitted his case). Therefore, based on the record before us, Newell has

failed to show that his trial attorney’s failure to call witnesses resulted in

ineffective assistance. Accordingly, we overrule those portions of Newell’s

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argument under issues one, two, and three asserting ineffective assistance due

to failure to call witnesses.

      2. Failure to Conduct any Pre-trial Investigation

      As a sub-issue under his first and second issues, and as part of his third

issue, Newell claims that his trial attorney’s lack of pre-trial investigation

resulted in ineffective assistance of counsel. However, the record does not

reflect what investigation, if any, was performed before trial, and Newell has

failed to develop a record of the information that his trial attorney would have

discovered through further investigation. Therefore, without support in the

record for his assertions regarding lack of investigation, Newell cannot

demonstrate ineffective assistance of counsel. See McFarland v. State, 928

S.W.2d 482, 500 (Tex. Crim. App. 1996) (holding that any allegation of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness), overruled on other

grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998).

Accordingly, we overrule those portions of Newell’s argument under his first,

second, and third issues claiming ineffective assistance due to lack of

investigation.




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      3. Lack of an Opening Statement

      As part of his first issue, Newell asserts that his trial attorney was

ineffective for failing to make an opening statement.        However, there is a

presumption that an attorney’s decisions at trial are formulated based on sound

trial strategy. Cardenas v. State, 30 S.W.3d 384, 391 (Tex. Crim. App. 2000).

Newell did not file a motion for new trial alleging ineffective assistance of

counsel. As a result, we do not have the benefit of knowing the trial attorney’s

reasons for not giving an opening statement. Therefore, Newell has failed to

rebut the presumption that such decision was based on sound trial strategy.

See Standerford v. State, 928 S.W.2d 688, 697 (Tex. App.—Fort Worth 1996,

no pet.) (holding that the failure to give an opening statement has been held to

be a valid tactical decision). Accordingly, we overrule the portion of Newell’s

argument under his first issue asserting ineffective assistance based on his trial

attorney’s failure to make an opening statement.

      4. Failure to File Pre-trial Motions

      As part of his second issue, Newell argues that his trial attorney did not

provide effective assistance of counsel because, other than a form motion in

limine, he failed to file pre-trial motions and obtain rulings on substantive issues

that figured prominently during trial. Moreover, Newell argues that had pre-trial

motions been filed, his trial attorney would have been better informed as to the

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consequences of rejecting a plea bargain agreement offered by the State.

However, Newell has failed to articulate which meritorious motions his trial

attorney could have filed that would have resulted in a change in the outcome

of the case. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App.

1998) (holding that unless appellant shows that a pretrial motion had merit and

that a ruling on the motion would have changed the outcome of the case,

counsel will not be ineffective for failing to assert the motion). Therefore,

based on the record before us, Newell cannot show that his trial attorney’s

failure to file pre-trial motions resulted in ineffective assistance of counsel.

Accordingly, we overrule the portion of Newell’s argument under his second

issue claiming ineffective assistance due to his trial attorney’s failure to file pre-

trial motions. 2



      2
        … As part of his second issue, in a point heading only, Newell raised
ineffective assistance of counsel based on his trial attorney’s failure to complete
a competent cross-examination of the State’s expert. However, Newell failed
to set forth any argument or legal authority to support his position. Therefore,
we overrule this portion of his argument as inadequately briefed. See Tex. R.
App. P. 38.1(h); Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000),
cert. denied, 532 U.S. 1053 (2001); Mosley v. State, 983 S.W.2d 249, 256
(Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999)
(holding that if a party provides no argument or legal authority to support its
position, the appellate court may properly overrule the issue or point as
inadequately briefed).
       In addition, as a sub-issue under his second issue, Newell argues
ineffective assistance of counsel due to his trial attorney’s failure to ensure that
Newell’s sister remained outside the courtroom pursuant to invoking “the rule.”

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         5. Cumulative Effect of Decisions

         Finally, in his fourth issue, Newell asserts that he was denied effective

assistance of counsel as a result of his trial attorney’s cumulative decisions and

lack of action before and during trial. However, our review of the record shows

that Newell’s trial attorney (1) successfully argued his motion in limine, (2)

elicited testimony from the State’s witnesses sufficient to impeach their

credibility and cast doubt on the State’s case, (3) elicited testimony implicating

someone other than Newell for the crime, and (4) competently argued that the

State lacked evidence to connect Newell to the stabbing. Therefore, based on

the record before us, Newell has failed to establish by a preponderance of the

evidence that his trial attorney’s conduct was not reasonable under the totality

of the circumstances and prevailing professional norms.3 See Strickland, 466

U.S. at 688–89, 104 S. Ct. at 2065. Accordingly, we overrule Newell’s fourth

issue.


However, it is unclear from the record and Newell’s brief how this instance
would amount to ineffective assistance. Therefore, we also overrule this sub-
issue as inadequately briefed. See Tex. R. App. P. 38.1(h); Mosley, 983
S.W.2d at 256.
         3
       … Absent specific explanations for counsel’s decisions, a record on direct
appeal will rarely contain sufficient information to evaluate an
ineffective-assistance claim. See Bone v. State, 77 S.W.3d 828, 833 (Tex.
Crim. App. 2002). Ordinarily, this kind of record is best developed in a hearing
on an application for writ of habeas corpus or a motion for new trial. Jackson,
973 S.W.2d at 957.

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                              IV. Conclusion

     Having overruled all of Newell’s dispositive issues, we affirm the trial

court’s judgment.




                                         BOB MCCOY
                                         JUSTICE


PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 11, 2008




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