### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00742
- CR

Selina Faith Parsons, Appellant

v. The State of Texas, Appellee

FROM THE 119TH DISTRICT COURT OF TOM GREEN COUNTY NO. B
- 17
- 0946
- SB, THE HONORABLE BEN WOODWARD, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Appellant Selina Faith Parson s pleaded guilty to the offense of aggravated assault with a deadly weapon. S ee Tex. Penal Code § 22.02(a)(2)

. Following the hearing on punishment, t he district court sentenced Parsons to 1 8 years ’ imprisonment. In three related points of error o n appeal , Parsons asserts that her trial counsel provided ineffective assi st ance by failing t o object to the admissibility of statements that Parson s had made to the police during the investiga t ion

. We will affirm the district cou rt ’ s judgment of conviction.

BACKGROUND At the punishme nt hearing, the district court heard evidence that in the early morning hours of July 26, 2017, Parson s ’ s husband , Justin Miller , was sleeping in his bedroom a t
h is h ome in San Angelo when he awoke to a man stabbing him with a knife. Miller attempted to
d efend himself and began wrestling with the assailant , who fled from the bedroom . Miller , who2

had been stabbed multiple times in his head, hand, and abdomen, s t um bled out of the bedroom
and made his way to anot her room in the house, wh ere a safe contained Miller ’ s firearms.
However , when Miller opened the safe, his fi r earms were missing, and he passed out. When Miller regained consciousness, he w ent into the li ving room, where he fo und Parsons and her
friend , Danielle Huckabee , on the couc h

. The assailant had left the house. Miller asked Parsons to call 911, but she did not

. Short ly thereafter, Parsons and H uckabee drove Miller to the
h o s pital, where he was treated for his injurie s
. 1 M ill er rec ounte d that in addition to the missin g firearms, he noticed during the assault that his cell phone was missing from the night stand next to his bed, where he usually kept it while he slept

. Miller a lso testified th at h e had securi ty

camera s instal led throughout his house, but in his review of the security

- camera footage from the time of the assault, he discovered “ a blank spot missin g from the security system. ”

The assailant was later identified a s Chris Lange, Pa rson s ’ s ex
- boyfriend. 2 The
eviden ce tended to show that there was a conspiracy between Parsons and Lange to kidnap
Miller

. Huckabee , who was a co

- defendant in the case, testified that in June 2017, she overheard
a conversation between P a r s ons and Lange in which Parsons told Lange tha t he , hi s brother, and
his friend were to enter M iller ’ s hous e , “ get Justin, like, tie him up, put something over his head, and then they were going to take him to Dallas or Austin ” and “ drop him off ” there.

1 The injur ies were serious. Miller testified that he had lacerations on his hea d and left ear ; that a tendon on his left hand was severed , requir in g surgery and m o nths of phy sical therapy ; and that the injuries to his abdomen required emergency s urgery and the removal and reatta chment of part of his bowel.

2 Lange was tri ed separately and convicted of the of fense of aggrava ted assault with a deadly weapon. T his C o urt affirmed his conviction on appeal. See Lange v. State , No. 03

- 18

- 00704

- CR , 2019 WL 3023313 , at *2 (Tex . App.

— Austin Ju ly 1 1, 2019, no pet.) (mem. op., not designat ed for publication ).3 H uckabee recounted that on the night of the assault, af ter Miller had gone to bed,
she w as on t he couc h in the living room when she saw Parsons go into Miller ’ s office, where his
firearms and the controls to the security camera s w ere located

. Huckabee t h e n saw Parsons go in to Miller ’ s bedroom to “ sleep with J ustin

. ” Afterwards , Parsons return ed to the livi ng room , and Lange ent ered the house , holding two knives , including one that looked like a hatchet

. Huckabee testified that she saw La nge and Parsons t a lking in the kitchen, and she heard Parsons tell Lang e that Miller was asleep in the bedroom. Pa rsons t hen went to the couch with Huck a bee
and “ held her tight , ” wh ile Lange went to the bedroom.

Hucka bee then “ heard screams coming from Justin ” and shor t l y thereafter saw Lange run out of the house. She also saw Miller , who was bleeding heavily, ex it the bedroom ,

“ collapse several times ” on the floor, and plead with Pa rso ns and Huckabee to call 911 because

“ he was dying

. ” Hucka

bee was “ freaking out ” bec a u se she “ can ’ t handle the sight of blood, ”
while Parsons had “ gr abbed the phone ” but did nothing with it. E ventually, Mille r was able to get out of the house , an d Pars ons and Huckabee followed him out, helped him into Parsons ’ s car , and drove him to the h o spital. Huck abee further testified that at the hospital, Parsons “ wa s crying ” and “ kept saying , ‘ I ’ m sorry, Huck , that ’ s not the way it was supposed to happen. ’ ”
When aske d i f Parsons said anything “ about it being all her fault, ” Huckabee testified, “ Ye s ,

ma ’ am, she did. ”

Detective Matt Hawthorne of the San Ange lo Police Department investigated the
assault. Hawtho rne testified that he interviewed both Huckabee and Parsons at Parson s ’ s house
and obtained a written statement from Parsons. The statement, w hich was admitted into
evidence without objection from defense counse l , contained the following:4

Me and my coworker (Danielle Huckabee) fell asleep on my couch at 4:15 a. m. and woken up between 5

- 6 a.m. to a tall male wearing a mask pointed to the couch a n d put a finger to his mouth. Next thing I know the male ran out and Justin [came] out telling u s to call 9 11. I told him to get in the car and took him up to Shannon [M edi cal Center] . He kept saying “ I ’ m dying. ” When we got to Shannon he was to o ken [s i c] by the ER staff. My coworker and I came back here to the house. I realized that the gun saf e was empty and my cameras were off

.

L ater that day, Hawthorne interviewed Parson s a t the police station

. He testified that she was not in custody but that he read Parsons her Miranda rights 3 anyway “ to be on the
safe side ” b ecause h e did not know if s he would become a suspect. Hawthorne recounted th at during the interview, he tol d Parsons that her st atement was in consistent with Huckabee ’ s statement and as k ed her “ if she knew who the suspect was. ” Parsons told Hawthorne tha t it was Chris Lange , and s he explained that she had told Lange that Miller h ad abused her , which made Lange “ mad and upset ” and wan t “ reveng e ” against Miller. Parsons further acknowled g ed that
she had unplugged the se curity camera s on th e night of the as sault , that she had taken M iller ’ s firearms from the safe and hidden them in Huckabee ’ s truck , and that Lange had told her on the night of the assault “ to tell the cops that it was a bur g lary gone bad and that the guy was wearing
a ski mask , ” which Parsons admitted was false

. Parso ns further told Hawthorne that she knew Lange coul d be violent b u t that she “ never thought it would go to this extreme of measures

. ”
W hen Hawthorne asked Pars o n s if she believed “ Christopher Lange was ever going to try to kill ”
Mille r, Parsons “ replie d tha t she believed so, but [Lange] never actually tol d her anything. ”

Parsons testified in her defense. When asked “what was the plan” with Lange,
Parsons test i f

i ed, “Mr. Lange was just supposed to go with us and talk to Mr. Mill er and maybe

3 See Miranda v. Arizona , 384 U.S. 436, 444 (1966)

.5

rough him up a l ittle bit and help me get out of that house beca use o f how I was treated.” She denied telling Lange to sta b Miller

. Parsons denied ma king certain statemen t s t o the police , including the statements admitting that she had unp lugg ed the security camera s and hi d den the
firearms. Parsons also claimed th at she could not remember anything that she had told the pol ice
because she had “ a really bad case of insomnia ” a t the time and had been “ up for four days straight

. ” She added, “ I honestly do not remember th e interview at all. ”

T he district court found Pa rsons guilty of the charged offense and sentenced her

to 18 years ’ impris onment as noted above

. This appeal f o ll o wed.

STANDARD OF REVIEW To establish ineffective assistance of c ounsel, an appellant must demons trate by a preponderance of the evidence both deficient performance by counsel and prejudice suffered by
the defendant. Strickland v. Washington , 466 U.S. 668 , 687 (1984) ; Miller v. St ate , 548 S.W.3d 497, 499 (Tex. Crim. Ap p. 2018)

. “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Strickland , 466 U.S. at
700 ; see Perez v. Sta t e , 3 10 S.W.3d 890, 893 (Tex. Crim. App. 2010)

.

The appellant must f

irst demonstrate that counsel ’ s performance fe ll below an objective standard of reasonableness under preva iling professional norms. Strickland , 466 U.S.
at 687

– 88 ; Ex parte Scott , 541 S. W

. 3d 104, 115 (Tex. Crim. App. 2017)

. To prove deficient performance , “ [ t ] he defendant must overcome ‘ the strong presumption that counsel ’ s conduct fell within the wide range of reasonable professional assistanc e ’ and that the conduct constituted
sound tr i al s trategy. ” Pr ine v. State , 537 S.W.3d 113 , 117 (Tex. Crim. App. 2017) (quoting
Tho mpson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) )

. “ To defeat this presumption,6

‘ [a]ny allegation of ineffectiveness must be firmly founded in the reco rd and th e re c ord must affirmatively demonstrate the alleged ineffectiveness. ’ ” Id

. (quoting Mc Farland v. State , 928 S.W.2d 482, 500 (Tex. Crim. App. 1996) )

. “ Trial counsel should generally be given an opportunity to explain his actions before being found ineffec t ive

. ” Id

. (citing Rylander v. State , 101 S.W.3d 107, 111 (Tex. Crim . App. 2003) )

. “ I n the face of an undeveloped record, counsel should be found ineffective only if his conduct was ‘ so outrageous that no competent attorney would have engage d in it. ’ ” I d

. ( q uoting Goodspeed v. State , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) )

. “ The reco rd on dir ect appeal is generally insufficient to show that counsel’s performance was deficient

. ” I d

. (citing Bone v. S tate , 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) )

. Thu s , in most cases, “ the better course is to pursue the claim in ha beas proceedings

. ”
Andrews v. State , 159 S.W.3d 98, 102 (Tex. Crim. App. 2005)

.

To prove prejudice, t he appellant must show the existence of a reasonable probability

— one s ufficient to und er mi n e confidence in the outcome

— that the result of the proceeding woul d have been different absent counsel ’ s deficient performan ce. Strickland , 466
U.S. at 694 ; Burch v. State , 541 S.W.3d 816, 820 (Tex. Crim. App . 2017)

. “ In every case the
court should be c o ncerned with whether, despite the strong presumption of reliabilit y, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produc e just results.” Strickland , 466 U.S. at 6 96

. “ [ T ] he ultimate focus of inquiry must be on the fundamental fairne ss of the proceeding whose result is being challenged. ” Id

. “ If the deficient performance might have affected a guilty verdict, ‘ the question
is wh ether there is a reasonable probabil it y t hat, absent the errors, the fact finder would have had
a reasonable doubt respecting guilt.” Miller , 548 S.W.3d at 499 (quoting Strickland , 466 U.S. at 695 )

. “ If the deficient performance might have affected a puni shment verdict, the prejudice issue7

is w h ether there is a reasonable probability that, absent the errors, t he sentencer would have assessed a more lenient punishment. ” Id

. “ In making this determination, a court hear ing an
ineffectiveness claim must consi der the totality of the evidence bef or e t he judge or jury. ”
Strickland , 466 U.S. at 695

.
ANALYSIS

In th ree related points of error, Parsons asserts that her trial counsel was
ineffectiv e in failing to object to the sta tements that she made to the police. In h er first point of

error, Pa rs ons a sserts that counsel failed to file a motion to suppress the state ments , request a hearing on whether they were made voluntarily , or otherwise object to their admission . In her

sec ond point of error , Parsons claims that counsel failed to object to t he sta t ements on the ground
that , before making her statements, Parsons was not given the required statutory war nings

. See
Tex. Code Crim. Proc. a rt. 38.22 , §§ 2(a), 3(a)

. In her third point of error, Parsons contends that
counsel failed to object to the s tate m ents on the ground t hat they were not voluntar y . See id

. § 6

. Deficient performance

In the context of a complaint t hat trial counsel failed to prope rly pursue a motion to suppress a defendant ’ s statements to the police or request a hearing o n whet he r suc h

statements were voluntary , the burden is on the defendant to show that the statements should
have been suppressed

. See Jackson v. State , 973 S.W.2d 95 4, 957 (Tex. Crim. Ap p. 1998) ; Lozada

- Mendoza v. State , 951 S.W.2d 39 , 43 (Tex. App.

— Corpus Chri st i 19 9 7 , no pet.)

. “Counsel is not required to engage in the filing of futile motions.” Mooney v. State , 817 S.W.2d
693 , 698 (Tex. Crim. App. 1991) ; Hollis v. State , 219 S.W.3d 4 46, 456 (Tex. App.

— Aust in 2007, no pet.) ; s ee also Ex pa rte Chandler , 182 S .W .3d 35 0 , 356 (Tex. Crim. App. 2005)8

(explaining that “ a reasonably competent counsel need not perform a useless or futile act ” ).
Similar ly , w hen claiming that counse l was ineffec t ive for failing to make an object ion , the appellant mus t demonstrate that if coun se l had objected, the trial court would have committed error in refusing to sustain the objection. See Vaughn v. State , 931 S.W.2d 564, 566 (Tex. Crim. App. 1996) ; Jagaroo v . State , 180 S.W.3d 793, 800 (Tex. App.

— Houston [14th Dist.] 2005, pet.

r ef ’ d )

. T hu s , i n this case, to show that counsel wa s deficient for failing to move to suppress, request a hearing on, or otherwise object to the admissibility of Parson s ’ s statements, “ the appellant was required to have produced evidence that defe ated the p r esu mption of proper police
conduct , ” Jackson , 973 S.W.2d at 957 , that demonstrated t hat Parsons ’ s statements were involuntary , see Jackson v. Denno , 378 U.S. 368 , 376

- 77 (196 4) ; Joseph v. State , 309 S.W.3d 20 , 26 (Tex. Crim. App. 2010) , or that showed that th e stat e ments were inadmissible for some other

reason. Parsons identifies t wo reasons why she claims her statements were inadmissible : (1) the police failed t o pro vide t he statu tory war nings required by Article 38.22 of the Code of
Criminal Proc edure ; an d ( 2) Par s ons ’ s statements w ere involuntary. The record does not support
either contention.

Art icle 3 8. 22 provides that no written or oral statement o f an accused made as a
result of “ custodial interrogation ” shall be admissible against the accused in a c rim inal
p r oceeding unless certain warnings are given , inclu ding that she has the right to remain silent,
the right to an attorney, and the right to terminate the interview at any t ime. See Tex. Code
Crim. P roc. art. 38.22, §§ 2 (a) , 3(a)(2)

. However, thes e w arning s are required only if the
accused is in custody. See id

. § 5

. A person is in custody only if, under the circumstances, a reasonable person would believe that h er freedom of movement was “ restrained to the degree9

associated with a formal ar rest. ” State v . Saenz , 411 S.W.3d 488 , 496 (Tex. Crim. App. 2013) (citing Stansbury v. California , 511 U.S. 318 , 322 (1994) )

. “ The determination of custody must be made on an ad hoc basis, after considering all of the (objective) circumstances. ” Dowthitt v.
Sta te , 93 1 S.W.2d 244 , 255 (Tex. Crim . App. 1996)

. “ Stationhouse questioning does not, in and of itself, constitute custody. ” Id

. Rather , a pers on is in custody : “ (1) when the suspect is physically deprived of [her] freedom of action in any significant way , (2) w hen a law enforcement officer tells the suspect that [ she] cannot leave, (3) when law enf orcement offi cers create a situation that would lead a reasonable person to believe that [her] freedom of movement has been significantly restricted, and (4) wh en the r e is probable cause to arrest and law enforcement officers do not tell the suspect that [ she] is free to leave. ” Id

. The limited record
be for e us is insufficient to conclude that when Parsons made either her wri tten statement at her
h o use or her oral statements at the police station, she was in any of the above situations and was
th erefore “ restrained to the degree associated with a formal arrest

. ” See id

. Consequently , we cannot conclude that trial counsel was def icien t in failing to file a motion to suppress or
otherwise object to the admi ssibility of Parsons ’ s statements on that ground. See Davis v. State , 533 S.W.3d 498, 512 (Tex. A pp.

— Corpus Chr isti

- Edinburg 2017, pet. ref ’ d ).

Moreover, even if Parsons h ad been in c ustody , Hawth orne testified that before interviewing her at the station , he read Parsons her Miranda warnings , which are similar to the warning s required under Article 38.22

. See State v. Pena , 581 S.W.3d 467 , 475 (Tex. App.

— Austin 2019, pet

. ref ’ d)

. Th u s, w ithout mo re inf ormation as to what , specifically, Hawthorne said or did not say to Parsons reg arding her rights, we c an not conclude that Hawthorne violated the requirements of Article 38.22

.10 We reach a similar conclusion regarding the vol untariness of Parsons ’ s
statements

. To find counsel deficient for failing to request a hearing on the voluntariness of
Parson s ’ s statements, we must b e able to conclude from the record that a hearing would h ave resulted in the suppression of the st atement s. See Mowbr a y v. State , 788 S. W.2d 658 , 671 (Tex. App.

— Corpus Christi

- Edinburgh 1990, pet. ref ’ d). T here i s some evidence in the record that Parsons had a learning disability, was enrolled in Mental He alth and Mental Reta rdation (MHMR) services , and was taking an un s pecified medication to treat an unsp ecified mental
illness. Additionally, Parsons testified that she suffered from insomnia at the time of the
interview and had not slept in days

. However, such ev idence is not sufficient by itsel f to render
her s tatemen t s involuntary and in admissible

. See Oursbourn v. State , 259 S.W.3d 159 , 173 (Tex. Crim. App. 2008) ; Umana v. State , 447 S.W.3d 346 , 350 (Tex. App.

— Houston [14 th Dist. ] 2014, pet. ref ’ d )

. “ Whether the accused is mentally ill is but o ne chara cteristic amo n g many to consider when evaluating the voluntariness of a confession. ” Umana , 447 S.W.3d at 351

. “ A confession is involuntary if the totality of the circumstances demonstrates that t he confessor did
not make the decision to confess of [her] own free wil l

. ” Id

. (citing Vasquez v. State , 179 S.W.3d 646, 655 (Tex. App.

— Austin 2005) , aff ’ d , 225 S.W.3d 541 (Tex. Crim. App. 2007) )

. The circumstances include both the c harac teristi cs of the accused and the circumstances surrounding the poli ce inte rrogation. Id

. Here , we neither know the extent or severity of
Parsons ’ s mental disability or illness , nor do we know the specific circumstances surrounding the police interrogation. Thus, o n the limited record before us, we cannot conclude that c ounsel was deficient f

or failing to request a hearing on the voluntariness of Parsons ’ s statements.11

P rejudice Moreover, even if we could conclude on this record that trial counsel was defi cient in fail ing to object to the admissibility P arsons ’ s stat ements , we could n ot con c lude that
Parsons was prejudiced by that failure. This was a case in which P arsons pleaded guilty to
p articipating with her ex

- boyfriend in a violent crime that resulted in serious injuries to her
husband , a nd she adm itted in her testimo ny that part o f h e r “ plan ” w as for L ange to “ rough [Miller ] up a little bit. ” A dditionally, Da nielle Huckabee testi fied that she overheard a
conversation betwee n Parsons and Lange in which they di scussed a plan to kidnap Miller and
tha t on the nigh t of th e assault, she wi t ness ed Parson s commit multiple acts that tended t o implicate Parsons in the c rime , including : go ing to the room where Miller kept his firearms and
the controls to the security came ra s ; go ing to Miller ’ s bedroom and sle ep ing with him befor e returning to th e living room ; talk ing to Lange after he entered the h ouse armed with knives a nd
tell ing him that Miller was asleep in the bedroom ; h old ing Huckabee “ tight ly ” when Lange went to the bedroom, which Huckabee bel ieved w as an attempt by Parson s to “ mak [e ] sure [Huckabee] wasn ’ t going anywhere ” during the assault; and g rab bing the phone but do ing nothing with it when Miller asked her repeatedly to call 911

. A lso , at the hospital, Parsons apologized to Huckabee , to ld her “ that’s not th e way it w as supposed to ha p pen , ” and admitted
that the assault was her fault

. On thi s record, we cannot conclude that there is a reasonable probability that, absent counsel ’ s failure to object to the admissibility of Parsons ’ s statem ents to the police, t he distric t court would hav e assessed a more lenient punishment

. See Strickland , 466
U.S. at 6 93 ; Ex parte Cash , 178 S.W.3d 816 , 818

- 19 (Tex. Crim. App. 2005)

.

We overrule Parsons ’ s p oints of error.12 CONCLUSI ON
We affirm the district court ’ s judgment of convict ion. 4

______________________________________ ____ Gisela D. Triana , Justice
Before Chief Justice Rose, Justices Baker and T riana
Aff irmed
Filed: August 28, 2020
Do Not Publish

4 Par sons a sserts that , as an alternative to reversal , we should abate the appeal and remand the ca se to the district court for a hearing to develop the re cord as to her ineffec tive

assistance

- of

- counsel claims

. This is, in effect , a request to allow Parson s t o fil e an out

- of

- time motion for new trial

. See Pettway v. State , 4 S.W.3d 390 , 391 (Tex. App.

— Houston [1 st Dist.] 1999, no pet.)

. However, the Court of Criminal A ppeals has instructed intermediate appellate courts not to allow defendants to file out

- of

- time m otions for new trial, “ absent truly extraordinary circumstances ” that do not exist here. See Oldham v. State , 977 S.W.2d 354 , 360 (Tex. Crim. App. 1998)

. We note , however, that Parsons is no t without a remedy to further develop the record as to her inef f ective

- assistance claims. She may file an applicati on for writ of habeas corpus , which is the preferred vehicle for raising a c omplaint regarding counsel ’ s perfor mance. See Ex parte Torres , 943 S.W.2d 469 , 475 (Tex. Crim. App . 1997)

.