             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-17-00413-CR
     ___________________________

  LADONNA LYNN WELCH, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 355th District Court
          Hood County, Texas
        Trial Court No. CR13545


   Before Kerr, Pittman, and Bassel, JJ.
  Memorandum Opinion by Justice Bassel
                           MEMORANDUM OPINION

                                  I. INTRODUCTION

      After a car wreck in which she struck and killed a motorcyclist, Appellant

LaDonna Lynn Welch pleaded guilty to the offense of intoxication manslaughter, a

second-degree felony. See Tex. Penal Code Ann. § 49.08. A jury assessed Welch’s

punishment at 20 years’ confinement, and the trial court sentenced her accordingly.

      In one issue, Welch argues that her conviction should be reversed and her case

remanded for a new punishment hearing because her trial counsel’s performance was

so deficient that she failed to receive effective assistance of counsel. She chronicles

seven specific ways she believes her counsel’s assistance was deficient:

   1. He failed to offer evidence to prove that Welch was eligible for community
      supervision (probation) because she had no prior felony conviction;

   2. He wept in front of the jury because his spouse recently died, and he is
      sensitive to death;

   3. He failed to object to the prosecutor’s comment on Welch’s failure to testify;

   4. He conceded that a vehicle is a deadly weapon;

   5. He conveyed confusion over the law in his closing argument;

   6. He only called one witness; and

   7. He failed to convey the severity of the punishment.

      As with most inadequate assistance claims brought by direct appeal, we lack an

appropriate record to resolve Welch’s challenges to her lawyer’s performance.

Further, both Welch’s briefing—which misstates the standard for evaluating

                                           2
ineffective-assistance-of-counsel claims occurring during the punishment phase—and

the record we do have fail to demonstrate that actions of Welch’s trial counsel

prejudiced her. Finally, most of the deficiencies catalogued by Welch appear to be

more differences in opinion about the tactical decisions of her trial counsel than a

challenge to his competence. We affirm.

                                  II. BACKGROUND

A. January 31, 2016

       In the early afternoon of January 31, 2016, David West was driving his

motorcycle northbound on F.M. 4 in Hood County. His wife was riding her trike

motorcycle alongside him.      Welch was driving a Dodge truck in the opposite

direction.

       Another motorist was driving northbound on F.M. 4 in front of David when

he saw that the Dodge truck traveling southbound had veered into the northbound

lane. The northbound motorist said that he initially thought the Dodge truck was

trying to pass, but when he realized that the driver was not aware of which lane she

was in, he “hit the ditch . . . to get out of the way.” When he looked over, he saw that

the driver of the Dodge truck was looking down at her lap and not even looking at

the road and that at no point did he see the driver attempt to brake or correct. In his

rearview mirror, he saw the Dodge truck strike the motorcycle, which caused David’s

body to fly through the air over the truck.



                                              3
      Another motorist driving on F.M. 4 at the time also witnessed the crash. She

stated that the impact sent David “straight up in the air,” making him look “like a rag

doll.” When first responders arrived only minutes after the crash, they “very quickly”

determined that David was deceased.

      Welch was indicted and charged with one count of intoxication manslaughter,

one count of manslaughter, and one count of criminally negligent homicide. Each

count included an allegation that Welch used a deadly weapon, her truck, in the

commission of each offense.

B. Trial Proceedings

      Welch waived arraignment and, after receiving admonishments from the trial

court, pleaded guilty to the charge of intoxication manslaughter.1 She elected to have

a jury assess her punishment, but before the punishment hearing, Welch filed an

application for felony probation.

      1. Witnesses’ Testimony

      At the punishment trial, the State called eleven witnesses and Welch called one.

Among the State’s witnesses was a trooper with the Department of Public Safety

(DPS), who testified that he was dispatched to the scene of the crash. The DPS

      The admonishments included the following relevant exchange regarding
      1

Welch’s trial counsel:

              THE COURT: And ma’am, have you been satisfied with [your
      trial counsel’s] representation?

             DEFENDANT: Yes, Your Honor.

                                          4
trooper spoke to Welch at the scene and observed that her breath smelled of alcohol

and that her eyes appeared red and “glassy.” The DPS trooper testified that Welch

stated to him that as she was driving, “she was looking down at her phone, and she

was texting, and when she looked back up, she realized she was on the wrong side of

the road, and she saw the motorcycle rider but was unable to avoid him.” The DPS

trooper said that he administered a voluntary field-sobriety test, which Welch failed,

so he placed her under arrest for DWI. Welch was administered a breathalyzer test

over an hour after the crash, and her results were a blood-alcohol content of .106 and

.098—both over the legal limit.

      Another witness testified that after the crash she saw Welch pour liquid out of

beer cans and then throw them out of the truck.

      A second DPS trooper also testified. The second trooper stated that he arrived

at the scene of the crash to assist the first DPS trooper by taking inventories on the

vehicles and releasing them to wrecker services. The second DPS trooper was asked

about several of the State’s exhibits, which included a copy of a receipt found in

Welch’s truck for the purchase of two alcoholic beverages approximately eight

minutes prior to the crash. The second DPS trooper testified that he found an open

beer can in the bed of Welch’s truck.

      The second DPS trooper was then asked about a domestic disturbance call he

responded to in August 2016—eight months after the crash. He said that when he



                                          5
arrived at the scene, he found Welch intoxicated and presenting a danger to herself or

others, so he arrested her for public intoxication.

       A community supervision officer with Hood County’s “Adult Probation

Department” testified that a condition of Welch bonding out of jail was the

installation of an ignition-interlock device that would prevent Welch from starting her

vehicle if she had above a .03 blood-alcohol content. The community supervision

officer said that just a few months after the crash, the interlock device reported “a

number of high alcohol -- high BAC alcohol readings.” He spoke to Welch, and

although she admitted to drinking beer, she denied trying to start her vehicle.

However, the community supervision officer was able to confirm “from the pictures

in -- from the interlock device that it was her, in fact, that was trying to start the -- the

vehicle.” He reported Welch’s admission of alcohol consumption and the positive

alcohol reading from the interlock device to the trial court, resulting in the forfeiture

of her bond and her return to jail.

       David’s son and brother testified as well. David’s son testified that David’s

death was “really hard,” and David’s brother testified that it was “devastating” and

“shocking.”

       The final witness was Welch’s husband, and he was the only witness that

Welch’s counsel called to testify.      He provided some background about Welch,

namely that she is from Tennessee; that they work together as pipefitters, which is

what brought them to Texas; that when he and Welch were married, he already had

                                             6
one child and she had three; and that they now have three grandchildren. Welch’s

husband stated that after the crash Welch went “crazy” and that she was “depressed,”

“felt guilty,” and had been prescribed medication. He testified that only six years

before, Welch’s own father had been killed by a car while he was riding his

motorcycle. He further said that Welch felt remorse over the crash and that he

believed, based on the support of their family, Welch could fulfill the conditions of

probation, which would include completely abstaining from alcohol.                 On cross-

examination, he theorized that after the crash, Welch “was trying to kill herself,

because she kept saying that she needed to die in the accident.”

      2. Jury Charge, Closing Argument, and Sentence

      After both sides rested, the trial court read the charge to the jurors. The jury

charge provided the jurors with four verdict-form options, two of which provided for

a sentence of less than 10 years and a recommendation that Welch’s sentence be

suspended and Welch be placed on community supervision.

      During closing argument, the State highlighted that even after the crash, Welch

had been arrested for public intoxication and had attempted to start her vehicle after

she had been drinking. According to the prosecutor, these events demonstrated that

Welch had no remorse, shame, or guilt because she was not changing her behavior. 2


      2
       [PROSECUTOR:] And if that’s not enough, you would think that
      regardless of how you get to the point to where you’re drunk, you know,
      on a Sunday afternoon and kill somebody, however you get there, you
      would think that if you had any remorse at all or any shame or any guilt, that you

                                              7
      Welch’s counsel began his closing argument by conceding that a vehicle was a

deadly weapon—stating he viewed the concession as necessary to preserve his

credibility with the jury.3 But the bulk of Welch’s counsel’s closing argument focused

on asking the jurors for a ten-year probated sentence. He explained that even in that

case, Welch would be required to spend 120 days in jail, and that the trial court has a


      would change your behavior. And we know that, ironically, it’s the same
      trooper that responds and arrests her for public intoxication, getting
      drunk and raising Cain, just a few months after this happened. And
      even worse, in my mind, is that Judge Walton put a condition on her
      bond that she have this machine in her car to where she can’t drink and
      drive. And but for Judge Walton, we might be here again on another
      trial, because she’s in that car, blowing on that tube, trying to get that car
      started just two months after she’s killed somebody.

[Emphasis added.]
      3
       [WELCH’S COUNSEL:] . . . I want to start by discussing the last
      page, the so-called “special issue.” Here in Texas, we call them -- call it
      a deadly weapon finding. You ask yourself, is a motor vehicle something
      that in the manner of its use or intended use is capable of causing death
      or serious bodily injury? Now, you know, if I were to blow all my credibility in
      front you guys, I would say, “Well, no.” The fact of the matter is any time any of us
      starts our car and pulls it onto a public road, that vehicle is capable of causing serious
      bodily injury or death. It’s the nature of the -- the instrument. So I’m not going to
      argue about that. . . .

              ....

      . . . That’s one of those things that has always seemed rather strange to
      me. But anyhow, it’s pretty hard to argue that a car can’t be a deadly
      weapon. I got an ink pen in my pocket that could qualify as a deadly
      weapon.

[Emphasis added.]


                                                  8
variety of “stringent rehabilitation facilities” where it could send Welch. Welch’s

counsel argued that the State’s rehabilitation programs would not be easy for Welch,

as he described one as “a very nasty program” but “very effective.”

      Finally, Welch’s counsel took exception to the prosecutor’s characterization of

Welch as lacking remorse and became so upset that the court reporter indicated that

Welch’s counsel was weeping.4

      The jurors answered “Yes” to the question of whether Welch’s truck was a

deadly weapon and unanimously assessed Welch’s punishment at 20 years’

confinement. The trial court rendered judgment in accordance with the jury’s verdict,

and this appeal followed.




      4
       [WELCH’S COUNSEL:] We’ve got a situation, I -- I -- I disagree with
      the State when they claim that this lady doesn’t have any remorse about
      what happened. Her father, growing up, it happened the same way.
      (Weeping) That’s why she -- that’s why she said she should have died in
      that wreck. I apologize. I just lost my wife, and I’m -- I’m sensitive to
      death issues.

             I think this lady should be given a chance. Yes, Granddad West is
      gone. There’s nothing we can do about that. There’s no point taking
      Grandma Welch away from her grandkids, you know, for some really
      extended time, and putting her in a nasty Texas prison, which basically
      are just as much of an incubation unit for future criminals as they are
      rehab -- rehabilitation facilities.

                                          9
                                   III. DISCUSSION

A. Direct Appeal is Generally an “Inadequate Vehicle” for Raising an
Ineffective-Assistance-of-Counsel Claim

      The Sixth Amendment guarantees a criminal defendant the effective assistance

of counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const.

amend. VI.    To establish ineffective assistance, an appellant must prove by a

preponderance of the evidence that her counsel’s representation was deficient and

that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App.

2013); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The record

must affirmatively demonstrate that the claim has merit. Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999).

      Although an ineffective-assistance-of-counsel claim may be raised on direct

appeal, “[a] petition for writ of habeas corpus usually is the appropriate vehicle to

investigate ineffective-assistance claims.” Mitchell v. State, 68 S.W.3d 640, 642 (Tex.

Crim. App. 2002). The court of criminal appeals has affirmed that direct appeal is

“usually an inadequate vehicle for raising such a claim” because the record is generally

undeveloped and because “trial counsel has not had an opportunity to respond to

these areas of concern.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005); Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Indeed, the

record on direct appeal will generally “not be sufficient to show that counsel’s


                                          10
representation was so deficient as to meet the first part of the Strickland standard” as

“[t]he reasonableness of counsel’s choices often involves facts that do not appear in

the appellate record.” Mitchell, 68 S.W.3d at 642.

      “[C]ounsel should ordinarily be accorded an opportunity to explain her actions

before being condemned as unprofessional and incompetent.”            Bone v. State, 77

S.W.3d 828, 836 (Tex. Crim. App. 2002). Absent such an opportunity, an appellate

court should not find deficient performance unless the challenged conduct was “so

outrageous that no competent attorney would have engaged in it.” Garcia v. State, 57

S.W.3d 436, 440 (Tex. Crim. App. 2001). In reviewing allegations under the deficient-

performance prong of Strickland, an appellate court “must not second-guess legitimate

strategic or tactical decisions made by trial counsel in the midst of trial.” State v.

Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008).

B.    Welch Misstates the Law for Reviewing Allegations of Deficient
Performance during the Punishment Phase

      Welch begins by citing Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980),

to contend that “[t]he standard of review for ineffective assistance of counsel at the

punishment stage differs from the Strickland two-prong test” and that “[t]he right to

effective assistance of counsel at the punishment stage entitles appellant to counsel

‘reasonably likely to render and rendering reasonably effective assistance.’” This

statement is incorrect.




                                           11
      Under Duffy, a court of criminal appeals case decided before Strickland, the

defendant was not required to demonstrate prejudice when the alleged deficient

performance occurred during a noncapital sentencing proceeding. 607 S.W.2d at 516.

However, nearly twenty years ago in Hernandez v. State, the court of criminal appeals

overruled Duffy and held that both prongs of the Strickland test are applicable to

ineffective-assistance-of-counsel claims alleging deficient attorney performance at a

punishment hearing. 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).

      Thus, to establish an ineffective-assistance-of-counsel claim during a

punishment proceeding, a defendant is required to prove both deficient performance

and prejudice arising from the deficient attorney performance. Id.; Garcia v. State,

No. 13-98-144-CR, 1999 WL 33757537, at *1 (Tex. App.—Corpus Christi Dec. 30,

1999, no pet.) (not designated for publication) (affirming that infective assistance of

counsel, “whether it pertains to the guilt/innocence phase or the punishment phase, is

reviewed according to the [two-pronged] standard in Strickland”).

C. Strickland’s Prejudice Prong

      Most times, resolution of the prejudice question disposes of an ineffective-

assistance-of-counsel claim. For that reason, courts may review a claim of prejudice

before examining the alleged deficiencies in counsel’s performance:

      [T]here is no reason for a court deciding an ineffective assistance claim
      . . . even to address both components of the inquiry if the defendant
      makes an insufficient showing on one. In particular, a court need not
      determine whether counsel’s performance was deficient before
      examining the prejudice suffered by the defendant as a result of the

                                          12
       alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness
       claim on the ground of lack of sufficient prejudice, which we expect will
       often be so, that course should be followed.

Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

       Strickland’s prejudice prong requires a showing that counsel’s errors were so

serious that they deprived the defendant of a fair trial—a trial with a reliable result. Id.

at 687, 104 S. Ct. at 2064. In other words, an appellant must show a reasonable

probability that the proceeding would have turned out differently without the

deficient performance. Id. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. A

“reasonable probability” is a probability sufficient to undermine confidence in the

outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. We

must ultimately focus on examining the fundamental fairness of the proceeding in

which the result is being challenged. Strickland, 466 U.S. at 696, 104 S. Ct. at 2069.

“[A] verdict or conclusion only weakly supported by the record is more likely to have

been affected by errors than one with overwhelming record support.” Id. at 696, 104

S. Ct. at 2069.

D. Analysis

       1. Welch Failed to Demonstrate Prejudice

       Welch devotes a single paragraph of her 47-page brief to the claim of prejudice,

and that paragraph does no more than rehash her counsel’s alleged deficiencies:

             The harm and prejudice in this case is the 20 years with a deadly
       weapon finding. If counsel’s wife had not recently passed, there would
       have been no weeping before the jury, no sensitivity to death issues, and

                                            13
      a better effort to prove up eligibility for probation. There would have
      been an objection to the prosecutor’s indirect comment on Appellant’s
      failure to testify, and more focus on mitigating punishment. Without the
      recent loss of a spouse, you would have seen a clearer mind that could
      present a clear argument to the jury, and ask them to allow Ladonna
      Lynn Welch to go prove herself. The jury did not get to see the
      Ladonna Lynn Welch that had never been in trouble before, nor did the
      jury get to see the Ladonna Lynn Welch who acted soberly for over a
      year before probation, nor the Ladonna Lynn Welch who had a good
      start at proving herself.

      This conclusory summation, which relies solely on conjecture and speculation,

fails to show a reasonable probability that the allegedly deficient performance from

her counsel caused Welch prejudice; thus, we overrule her sole issue on this basis. See

Hernandez, 988 S.W.2d at 771–72; Garcia, 1999 WL 33757537, at *3 (“Even if we

assume, for the sake of argument, appellant successfully demonstrated counsel’s

deficient performance, appellant has failed to establish a reasonable probability that,

but for counsel’s error, the punishment assessed would have been different.”).

      2. No Record to Support Deficient Performance

      Though Welch fails to demonstrate prejudice, in the interest of thoroughness,

we review and briefly analyze the alleged individual deficiencies of her counsel’s

representation.   In doing so, we note that while the first alleged deficiency is

reviewable on this record, the second, third, fourth, fifth, sixth, and seventh alleged

deficiencies consist of Welch’s appellate counsel inappropriately second-guessing

Welch’s trial counsel’s strategy and demonstrating how the lack of a developed record




                                          14
plagues an ineffective-assistance-of-counsel claim on direct appeal. Goodspeed, 187

S.W.3d at 392.

             a. No Evidence of No Prior Felony Convictions

      Welch argues that her trial counsel’s performance was deficient because he

failed to present evidence that Welch had never been convicted of a felony—a

necessary requirement for a defendant to establish in order to receive community

supervision. See Tenery v. State, 680 S.W.2d 629, 640 (Tex. App.—Corpus Christi 1984,

pet. ref’d) (“Appellant, not the State, had the burden of establishing his eligibility for

probation. A jury may not recommend community supervision in its verdict unless

both the sworn motion and the evidence show, and the jury finds in its verdict, that the

defendant has never before been convicted of a felony in this or any other state . . . .”

(citation omitted)). Welch contends that even though the application for community

supervision was filed and even though the jury charge correctly instructed the jurors

that the application had been filed, it was her burden to establish that she had never

been convicted of a felony and because her counsel set forth no such evidence, his

performance was deficient. The sentence imposed by the jury made Welch ineligible

for community supervision; thus, her contention is of no moment.

      In addition to having never been convicted of a felony, to be eligible for

community supervision, a defendant must receive a sentence of not more than 10

years. See Tex. Code Crim. Proc. Ann. art. 42A.056(1). The jurors assessed Welch’s

punishment at 20 years’ confinement. Welch offers no argument why the jury would

                                           15
have imposed a shorter sentence had it known she lacked prior felony convictions.

Thus, because the jury assessed Welch’s punishment at 20 years’ confinement,

preventing Welch from qualifying for community supervision no matter her prior

criminal record, Welch’s counsel’s failure to present evidence that Welch had never

previously been convicted of a felony was inconsequential. See Ex parte Cash, 178

S.W.3d 816, 819 (Tex. Crim. App. 2005) (finding no ineffective assistance of counsel

for failing to properly file a pretrial motion for probation because “the record reflects

that the jury sentenced applicant to 40 years in prison, which is considerably more

than 10 years in prison”); Gonzales v. State, 748 S.W.2d 510, 513 (Tex. App.—Houston

[1st Dist.] 1988, pet. ref’d) (holding that “[b]ecause the jury assessed punishment at 40

years confinement, the appellant was ineligible to receive probation,” so the “trial

counsel’s failure to establish the appellant’s entitlement to probation was

inconsequential”).

             b. Crying During Closing Argument

      Welch next argues that her counsel’s statement that he is sensitive to death

because his wife had recently died and the fact that he also wept during closing

argument represents deficient performance.         Welch cites no authority for the

proposition that her trial counsel’s “sensitivity to death issues,” even if true,

represents deficient performance. Although Welch contends that by crying when

discussing death, her trial counsel was effectively aligning himself with the

prosecutor’s case, her contention is mere speculation and essentially impermissibly

                                           16
invites us to second-guess her trial counsel’s strategy in how to present his closing

argument. Cf. Bone, 77 S.W.3d at 836 (“A vague, inarticulate sense that counsel could

have provided a better defense is not a legal basis for finding counsel constitutionally

incompetent.”).    Accordingly, nothing in our record supports that Welch’s trial

counsel’s performance was deficient due to weeping or having “sensitivity to death

issues.”

             c. Failure to Object to the Prosecutor’s Closing Argument

       Welch next complains that her counsel’s assistance was ineffective because he

failed to object to the prosecutor’s closing argument that implicitly commented on

Welch’s failure to testify when the prosecutor stated Welch had not shown any

remorse. However, the prosecutor did not comment about Welch’s failure to testify

at the punishment trial, but instead about her actions after the offense.5

       Therefore, Welch’s trial counsel’s performance was not deficient for failing to

object.

             d. Concession of a Vehicle as a Deadly Weapon

       Welch next complains that her trial counsel’s performance was deficient

because he conceded in closing argument that a vehicle is a deadly weapon. The court


       But again, even if the prosecutor’s closing argument had included an improper
       5

comment on Welch’s failure to testify at the punishment trial, Welch has failed to
demonstrate that the isolated comments, situated within the broader closing argument
and against the backdrop of the testimony, caused her prejudice. See Ex parte White,
160 S.W.3d 46, 55 (Tex. Crim. App. 2004).


                                           17
of criminal appeals has held that whether a vehicle constitutes a deadly weapon is

decided on a case-by-case basis. See Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim.

App. 2005) (“We do not suggest that a defendant should be charged with using a

vehicle as a deadly weapon every time the offense of evading arrest or detention is

committed.     The determination to seek a deadly weapon finding in those

circumstances is a fact-specific inquiry, and the facts will not always support such a

finding.”). For a vehicle to be considered a deadly weapon, it must be shown that the

vehicle “in the manner of its use or intended use is capable of causing death or serious

bodily injury.” Tex. Penal Code Ann. § 1.07(a)(17)(B); Drichas, 175 S.W.3d at 798.

      Given the overwhelming evidence at the punishment trial that the vehicle

driven by Welch caused the death of David, we cannot conclude that Welch’s

counsel’s strategy to concede that a vehicle was a deadly weapon was illogical or

unreasonable when Welch’s counsel even explained that he was conceding the issue to

maintain his credibility. See Martin v. State, 265 S.W.3d 435, 447 (Tex. App.—Houston

[1st Dist.] 2007, no pet.) (finding no ineffective assistance of counsel when defense

counsel called the defendant a liar and a thief because “taken in the full context of

counsel’s apparent strategy to gain credibility with the jury, we cannot conclude that

these statements constituted ineffective assistance of counsel”).

      Accordingly, his concession during closing argument did not represent

deficient performance.



                                           18
             e. Statement of Community-Supervision Law

      Welch complains that her trial counsel’s statement of community-supervision

law during closing argument “seemed to convey to the jury confusion about how the

law works on probation.”      These kinds of vague complaints are insufficient to

demonstrate deficient performance. See Bone, 77 S.W.3d at 836.

      Moreover, our review of Welch’s counsel’s closing argument does not reveal

such confusion. Rather, because Welch’s counsel’s closing argument was focused on

trying to obtain community supervision rather than incarceration, his concern was not

to provide a statement of community-supervision law, but to explain that community

supervision would not mean that Welch was getting off lightly. Accordingly, his

statement of community-supervision law does not present deficient performance.

             f. Only Calling Welch’s Husband as a Witness and Not
             Emphasizing the Gravity of Welch’s Punishment

      In her sixth and seventh allegations of deficient performance, Welch complains

that her trial counsel should have called more than one witness and should have

emphasized the gravity of Welch’s punishment. However, decisions regarding calling

witnesses and what points to emphasize in closing argument were Welch’s trial

counsel’s to make. See Duckworth v. State, 89 S.W.3d 747, 752 (Tex. App.—Dallas

2002, no pet.) (rejecting ineffective-assistance-of-counsel argument on direct appeal

that “counsel’s closing argument should have been more strenuous”); see also McCoy v.

Louisiana, 138 S. Ct. 1500, 1516 (2018) (Alito, J., dissenting) (reciting that “[a]mong


                                          19
the decisions that counsel is free to make unilaterally are . . . calling defense

witnesses[] and deciding what to say in summation”). Nothing in the record reveals

any other witnesses Welch would have called.

       Therefore, we conclude that Welch’s trial counsel’s performance was not

deficient under the first prong of Strickland.

                                   IV. CONCLUSION

       We conclude that Welch failed to show any prejudice arising from her trial

counsel’s performance.      Accordingly, we overrule her sole issue and affirm the

judgment of the trial court.

                                                    /s/ Dabney Bassel

                                                    Dabney Bassel
                                                    Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: January 31, 2019




                                            20
