                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-08-025-CR


RUBEN JAMES EDWARDS, JR.,                                        APPELLANT
A/K/A RUBEN JAMES EDWARDS

                                      V.

THE STATE OF TEXAS                                                     STATE

                                  ------------

     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                  ------------

                                 OPINION

                                  ------------

                               I. INTRODUCTION

      A jury found Appellant Ruben James Edwards, Jr. guilty of the felony

offense of indecency with a child by exposure and assessed his punishment at

seven years’ confinement in the Institutional Division of the Texas Department

of Criminal Justice. The trial court sentenced Edwards accordingly, and this

appeal followed.   In a single issue, Edwards claims that his trial counsel
rendered ineffective assistance of counsel. Based on the standard of review we

are required to apply, we will affirm.

                  II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      About six weeks after Edwards was arrested for the offense, Dr. Barry

Norman determined that Edwards was not competent to stand trial. Edwards

was committed to North Texas State Hospital, and approximately four months

later, on April 23, 2007, his attending physician determined that he was

competent to stand trial.

       On July 11, 2007, the trial court ordered Edwards to undergo a sanity

evaluation. Dr. Kelly Goodness, a clinical and forensic psychologist, prepared

a report that Edwards was sane at the time of the offense. On July 30, 2007,

Edwards’s defense counsel filed with the trial court a written motion requesting

that an expert be appointed to conduct a competency exam and specifically

requested that Dr. Goodness be appointed to examine Edwards again, this time

to determine whether he was competent to stand trial. The record does not

reflect whether the trial court granted this motion. Subsequently, on August

21, 2007, defense counsel filed a notice of intent to raise an insanity defense.

Defense counsel filed a notice of expert witnesses on October 11, 2007 and

listed Dr. Phillip Davis and Dr. Barry Norman as expert witnesses.




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      Edwards’s trial began on January 14, 2008. Edwards’s defense counsel

explained in her opening statement that

      we anticipate that we will bring you experts, without a doubt, that
      will tell you that Mr. Edwards was insane October 25 of 2006.

            ....

            And we anticipate that our experts will unequivocally indicate
      to you that he was insane and we anticipate that our expert—that
      their expert, Dr. Goodness, did not have all the information she
      needed to make the decision that she made that he was sane.

At trial, Dr. Goodness testified for the State, and Dr. Norman testified for the

defense.

      In his sole issue on appeal, Edwards claims that defense counsel was

ineffective because despite her representations to the jurors that they would

hear unequivocal expert testimony that Edwards was insane at the time of the

offense, she thereafter presented two expert witnesses who testified that “not

only did they have no opinion on the issue, but that they had never even been

asked to determine whether Mr. Edwards was insane at that time of the

offense.” Defense counsel’s failure in this regard, claims Edwards, cannot be

interpreted as reasonable trial strategy.

                            III. S TANDARD OF R EVIEW

      To establish ineffective assistance of counsel, 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).

      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

S.W.3d at 63).     To overcome the presumption of reasonable professional

                                        4
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

whose result is reliable. 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. The ultimate

focus of our inquiry must be on the fundamental fairness of the proceeding

whose result is being challenged. Id. at 697, 104 S. Ct. at 2070.

              IV. R ECORD IS INSUFFICIENT TO E STABLISH INEFFECTIVENESS

      The record before us contains no motion for new trial. Although a motion

for new trial is not a prerequisite to a successful ineffective assistance of

counsel claim, evidence presented at a motion for new trial hearing may offer

insight into defense counsel’s motives behind her actions and may rebut the

                                           5
strong presumption of reasonable professional assistance. See Massingill v.

State, 8 S.W.3d 733, 736 (Tex. App.—Austin 1999, pet. ref’d); see also

Robinson v. State, 16 S.W.3d 808, 809–11 (Tex. Crim. App. 2000) (holding

failure to file motion for new trial does not procedurally prohibit appellate claim

of ineffective assistance of counsel).

      Here, Edwards accurately points out that despite defense counsel’s claim

to the jury in her opening statement that she would present expert testimony

that Edwards was insane at the time of the offense, counsel presented no such

testimony. The record reflects, however, that Dr. Barry Norman was called as

an expert witness by defense counsel and testified that he had conducted a

sanity examination of Edwards in both 2003 and 2006 in connection with other

charges against Edwards. Dr. Norman testified that on both occasions he had

determined that Edwards was not sane at the time of the charged offenses. Dr.

Norman also testified that Edwards had been diagnosed with Persian Gulf War

Syndrome, post-traumatic stress disorder, and either bipolar I disorder or

schizoaffective disorder bipolar type. He explained that when Edwards was

psychotic he did not know right from wrong, did not know what was going on

around him, and had general difficulty understanding things.          Dr. Norman

testified that he had personally observed Edwards in a psychotic episode on

more than one occasion.

                                         6
      Defense counsel offered, and the trial court admitted, into evidence a

judgment of acquittal in favor of Edwards signed in September 2006; the

acquittal was based on Dr. Norman’s evaluation that Edwards was not sane at

the time of that offense. Defense counsel pointed out during her examination

of Dr. Norman that the present “offense is October, one month later almost to

the date of that judgment of acquittal.”

      Defense counsel successfully obtained the admission of defense exhibit

number 4—Edwards’s records from MHMR of Tarrant County. And defense

counsel timely designated Dr. Davis as an expert witness. During trial, while

the jury was out, the following exchange occurred:

      [Defense Counsel]: Dr. Davis is still in Lubbock. Carol brought me
      a message that Dr. Davis was still in Lubbock.

      THE COURT: We’re not stopping.

      [Defense Counsel]: I told him that.

      THE COURT: Since he got cut loose yesterday and -- there’s a nine
      o’clock flight in Amarillo to DFW on two different airlines.

            This is the Dr. Davis that was in Canyon, Texas, yesterday?

      [Defense Counsel]: Uh-huh.

      THE COURT: And yesterday -- Is that yes?

      [Defense Counsel]: Yes, ma’am.

      THE COURT: And yesterday the Court in Canyon said that he was
      cut loose, it was probably two or three in the afternoon, we got the
      word that he was through.

                                       7
      [Defense Counsel]: About three something.

      THE COURT: And let me just say, you know, being from Amarillo,
      there are many flights from Amarillo to Dallas on at least two
      different airlines in the evening and early evening.

      [Defense Counsel]: Yes, ma’am.

      THE COURT: So did you have him served with a subpoena in this
      case?

      [Defense Counsel]: Judge, when I spoke with my office --

      THE COURT: Just yes or no. Did you ever have him served with
      a subpoena –

      [Defense Counsel]: No.

      THE COURT: -- in this case?

      [Defense Counsel]: No.

      THE COURT: Then I can be no help to you.

      Edwards testified that he was a “war vet,” that he saw “death threats,”

“people trying to kill” him, and “Frankenstein and vampires running around.”

In response to the prosecutor’s question of whether he liked to expose himself

to people, Edwards said, “I’m sad to say I have nymphoic episodes.” Defense

counsel successfully obtained an instruction in the court’s charge that the jury

could find Edwards not guilty of the present offense by reason of insanity.

      The court of criminal appeals, in precedent binding on this court, has held

that “trial counsel should ordinarily be afforded an opportunity to explain his


                                       8
actions before being denounced as ineffective.”       Goodspeed v. State, 187

S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Rylander v. State, 101

S.W.3d 107, 111 (Tex. Crim. App. 2003)). 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.”    Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.

2001), cert. denied, 537 U.S. 1195, 123 S. Ct. 1351 (2003)).

          Here, defense counsel was unable to place expert testimony before the

jury that Edwards was insane at the time of the present offense. Her reasons

for not issuing a subpoena for Dr. Davis are not apparent from the record; the

trial court did not let her explain. But defense counsel did place evidence before

the jury that Edwards had been diagnosed with numerous, severe mental

illnesses, had been diagnosed as insane at the time of a previous offense that

occurred in 2005 only one month before the present offense, and had

experienced multiple psychotic episodes during which time he met the legal

definition of insanity. And defense counsel successfully obtained an instruction

in the jury charge authorizing the jury to find Edwards not guilty if they found

that he was insane at the time of the present offense. Based on the record

before us, in light of the strong presumption of reasonable professional

assistance by defense counsel, and in the absence of any opportunity for



                                         9
defense counsel to explain her motives concerning her words and conduct

involving the insanity defense, we cannot say that Edwards has met his burden

of showing by a preponderance of the evidence that his counsel’s

representation fell below the standard of prevailing professional norms. See

Thompson, 9 S.W.3d at 813; Randon v. State, 178 S.W.3d 95, 102–03 (Tex.

App.—Houston [1st Dist.] 2005, no pet.); see also Fox v. State, 175 S.W.3d

475, 487–88 (Tex. App.—Texarkana 2005, pet. ref’d) (holding that nothing

presented for review absent explanation as to why counsel did not present

expert   testimony);   Teixeira   v.   State,   89    S.W.3d   190,   194   (Tex.

App.—Texarkana 2002, pet. ref’d) (holding that there must be some showing

in the record that expert would have testified in a manner that would have

benefitted defendant). We overrule Edwards’s sole issue.

                                  V. C ONCLUSION

     Having overruled Edwards’s sole issue on appeal, we affirm the trial

court’s judgment.


                                                     SUE WALKER
                                                     JUSTICE


PANEL: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.

DAUPHINOT, J. filed a dissenting opinion.

PUBLISH

DELIVERED: January 15, 2009


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                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-025-CR

RUBEN JAMES EDWARDS, JR.                                           APPELLANT
A/K/A RUBEN JAMES EDWARDS

                                       V.

THE STATE OF TEXAS                                                      STATE

                                   ------------

     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                   ------------

                          DISSENTING OPINION

                                   ------------

      There is no defensive strategy to explain a defense lawyer’s telling the

jury that the defendant’s defense is insanity and then calling no expert in

support of the defense but, rather, calling a witness or witnesses to defeat the

defense.   I, therefore, would affirm Appellant’s sole point, reverse the trial

court’s judgment, and remand this case to the trial court for a new trial.


                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PANEL: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.
PUBLISH
DELIVERED: January 15, 2009




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