COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00481-CR

MELVIN LONNELL ALLEN APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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I. INTRODUCTION

A jury found Appellant Melvin Lonnell Allen guilty of indecency with a child

by contact. The trial court assessed Allen‘s punishment at confinement for life. 

In three points, Allen contends that he was denied effective assistance of 

counsel. We will affirm. 

 

1See Tex. R. App. P. 47.4.
2

II. FACTUAL AND PROCEDURAL BACKGROUND2

Allen is Lisa‘s biological father. Lisa has two children, Brittany and Jason. 

Lisa took her children on a trip to see Allen at his home in Louisiana in 2009; 

prior to that, Lisa had not seen her father since she was seven or eight years old. 

Brittany was five and Jason was seven at the time. Shortly thereafter, Allen 

began visiting Lisa and her children at their Arlington apartment about every 

other weekend. He would help out with the children, taking them to the park and 

taking Jason to football practice. Occasionally, Allen was at the apartment with 

the children by himself. 

Lisa‘s friend Andrew also spent a considerable amount of time with Lisa

and her children during this time. One day, Allen told Andrew to be careful 

because Brittany was developing a crush on him. When Andrew told Lisa what 

Allen had said, Lisa became concerned. She asked Brittany if anyone had ever 

touched her inappropriately. Brittany told Lisa that Allen had touched her breasts 

over her clothing. Brittany got a doll, pointed to the breast area, and made a 

circular motion with her finger to show where and how he had touched her. 

Brittany said that Allen had touched her multiple times and that he had told her to 

keep it a secret or ―something bad would happen.‖ 

 

2

To protect the anonymity of the children in this case, we will use aliases to 

refer to some of the individuals named herein. See Daggett v. State, 187 S.W.3d 

444, 446 n.3 (Tex. Crim. App. 2005); McClendon v. State, 643 S.W.2d 936, 936 

n.1 (Tex. Crim. App. [Panel Op.] 1982).
3

Lisa immediately contacted CPS and the police after Brittany‘s outcry. The 

police referred Brittany to Alliance for Children, a child advocacy center in 

Arlington. Brittany spoke with Lindsey Dula, a forensic interviewer at Alliance for 

Children. Brittany told Dula that Allen had touched her on the nipple area of her

breast once. Detective Donna Hubbard of the Arlington Police Department 

watched Brittany‘s interview with Dula from an adjoining room. After listening to 

the interview and conducting further investigation, Detective Hubbard got a 

warrant for Allen‘s arrest. Allen was taken into custody in Louisiana and 

extradited back to Texas. 

The jury found Allen guilty of indecency with a child. At the punishment 

phase of trial, Allen pleaded true to two enhancement paragraphs alleging prior 

convictions from Louisiana for indecent behavior with a child and sexual battery. 

The State introduced in evidence Allen‘s written stipulation and the pen packets 

relating to the prior convictions. The trial court found the enhancement 

paragraphs true, assessed Allen‘s punishment at life imprisonment, and 

sentenced him accordingly. 

III. EFFECTIVE ASSISTANCE OF COUNSEL

In three points, Allen argues that he was denied effective assistance of 

counsel. Specifically, he complains of his trial counsel (1) allowing the jury to 

infer that Allen had prior convictions during Detective Hubbard‘s crossexamination; (2) failing to object to the State‘s improper closing argument; and 
4

(3) failing to object to and stipulating to Allen‘s prior convictions during the 

punishment stage of trial. 

A. Standard of Review 

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

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

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); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009);

Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). In other 

words, for a claim of ineffective assistance of counsel to succeed, the record 

must demonstrate both deficient performance by counsel and prejudice suffered 

by the defendant. Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 

2012). 

In evaluating the effectiveness of counsel under the deficient-performance 

prong, we look to the totality of the representation and the particular 

circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. 

App. 1999). 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 
5

representation. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); 

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

Direct appeal is usually an inadequate vehicle for raising an ineffectiveassistance-of-counsel claim because the record is generally undeveloped. 

Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d at 813. This statement 

is true with regard to the deficient-performance prong of the inquiry when 

counsel‘s reasons for failing to do something do not appear in the record. 

Menefield, 363 S.W.3d at 593; Thompson, 9 S.W.3d at 813. 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.‖ Salinas, 163 S.W.3d at 

740 (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). Trial 

counsel ―should ordinarily be afforded an opportunity to explain his actions before 

being denounced as ineffective.‖ Menefield, 363 S.W.3d at 593 (quoting 

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

is not given that opportunity, then the 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 (2003)).
6

B. Ineffectiveness Not Raised in Motion For New Trial 

Although Allen filed a motion for new trial, he did not raise ineffective 

assistance of counsel in his motion. No hearing was held on the motion, and it 

was overruled by operation of law. See Tex. R. App. P. 21.8(c). Consequently, 

any trial strategy that Allen‘s attorney may have had for his challenged actions is 

not contained in the record. Allen argues, however, that none of the alleged 

errors are ―susceptible to  ̳trial strategy‘ analysis.‖ We will address each of 

Allen‘s allegations of ineffectiveness.

C. Presumption of Reasonable Assistance Not Overcome

1. Cross-Examination of Detective Hubbard

In his first point, Allen argues that trial counsel‘s cross-examination of 

Detective Hubbard during the guilt-innocence phase of trial ―opened the door‖ to 

evidence of Allen‘s prior Louisiana convictions and allowed the jury to infer that 

he had a criminal history. He points to the following exchange between trial 

counsel and Detective Hubbard: 

Q. When was the last time you had to do anything about this 

case? 

A. . . . . Well, back in November of 2011. 

Q. Okay. 

A. I did some more work. 

Q. And what was that? 

A. Contacting DeSoto Parish Sherriff‘s Office. 
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Q. I‘m talking—I‘m not talking about that process. I‘m talking 

about the process concerning [Brittany] and every other thing about 

the case. 

A. On June 2nd of 2011 I got my written statement from 

[Andrew]. 

Q. Okay. That was the last time you collected anything or had 

anything to do with this case? 

A. Well, no. I did do something on November 23rd. I collected 

some more information. 

Q. That‘s in respect of extraditing Melvin to Texas, right? 

A. No. 

Q. You collected additional information? 

A. Yes. 

Q. From where? 

A. From the lieutenant at that sheriff‘s office. 

Q. At where? 

A. At the DeSoto Parish Sheriff‘s Office. 

Q. Okay. If you‘ll limit what you‘re talking about to Texas. 

Okay? 

A. Okay. 

Allen argues that the jury could have inferred that Detective Hubbard was 

investigating Allen‘s criminal history in Louisiana because she specifically stated 

that she was not communicating with Louisiana law enforcement about his 

extradition. But nothing in Detective Hubbard‘s testimony demonstrated to the 

jury that Allen had prior convictions in Louisiana. Defense counsel asked 
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Detective Hubbard when she had last done anything with this case, and 

Detective Hubbard referenced collecting additional information in Louisiana. No 

other details about Detective Hubbard‘s dealings with the sheriff‘s office in 

Louisiana were presented to the jury; in fact, defense counsel then instructed the 

detective to limit her testimony to her investigation in Texas. Furthermore, no 

evidence of Allen‘s extraneous offenses was admitted during the guilt-innocence 

stage of trial. Because Allen has not met his burden to show by a 

preponderance of the evidence that his counsel‘s questioning of Detective 

Hubbard constituted deficient performance, we overrule Allen‘s first point. See 

Menefield, 363 S.W.3d at 592; Hathorn v. State, 848 S.W.2d 101, 119–20 (Tex. 

Crim. App. 1992), cert. denied, 509 U.S. 932 (1993).

2. No Objection to the State’s Closing Argument

In his second point, Allen argues that he was denied effective assistance 

when his trial counsel failed to object to the following closing argument by the 

State:

What motive does anyone have from this? The man who came into 

[Lisa]‘s life briefly is out again. She trusted her father. She thought 

they were finally going to have a relationship. And did she get 

burned. Because never in a million years did she think that‘s what 

her father would do to her daughter. 

Allen argues that the jury could have easily inferred from this argument 

that Allen had previously been imprisoned and is ―out‖ of prison. He argues that 

his counsel‘s failure to object, to request an instruction to disregard, or to request 

a mistrial was error. Prior to the above argument, the State summarized the 
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evidence of Lisa and Allen‘s relationship, stating that although Allen had not seen 

Lisa since she was young, three years before trial, ―all of a sudden, Melvin Allen 

wants to be involved in Lisa‘s life.‖ 

Even assuming that the State was improperly referring to Allen getting 

―out‖ of jail, instead of getting out of Lisa‘s life, the decision to object to particular 

statements uttered during closing argument is frequently a matter of legitimate 

trial strategy. See Kuhn v. State, 393 S.W.3d 519, 539 (Tex. App.—Austin 2013, 

pet. ref‘d). Evidence of counsel‘s strategy, if any, is crucial to determining 

whether he was ineffective for failing to object to such a statement. Id. 

(explaining that one reasonably sound strategic motivation for not objecting to the 

prosecutor‘s closing argument was the desire to avoid drawing additional 

attention to the prosecutor‘s opinion); Evans v. State, 60 S.W.3d 269, 273 (Tex.

App.—Amarillo 2001, pet. ref‘d) (citing Hubbard v. State, 770 S.W.2d 31, 45 

(Tex. App.—Dallas 1989, pet. ref‘d)). In the absence of any opportunity for trial

counsel to explain his motives for not objecting to the State‘s closing argument, 

Allen has failed to overcome the strong presumption that his trial counsel 

provided reasonably professional assistance. See Salinas, 163 S.W.3d at 740; 

Mallett, 65 S.W.3d at 63. We overrule his second point.

3. Stipulation to Prior Convictions

In his third point, Allen argues that he was denied effective assistance 

during the punishment stage of trial when trial counsel failed to object to Allen‘s 
10

prior convictions used to enhance punishment and stipulated to Allen‘s prior 

convictions.3

The record reflects that Allen and his attorney discussed whether Allen 

wanted to stipulate to the prior convictions or plead not true to them. Trial 

counsel questioned Allen on the record about his decision to stipulate and asked 

if Allen understood the effect of stipulating, and the trial court also explained to 

Allen his right to plead not true to the prior convictions and have the State prove 

them. Allen stated on the record, in response to both his trial counsel‘s and the 

trial court‘s questioning, that he wanted to plead true and stipulate to both of his 

prior convictions. The record is silent as to what advice trial counsel may have 

given Allen about pleading true to the prior convictions, whether Allen persisted 

in pleading true against his counsel‘s advice, and what trial counsel‘s strategy 

was. When the record does not reveal what advice was given by counsel, an 

appellate court ―cannot presume that the decisions originated with the attorney 

and were not the result of acquiescence to the client‘s wishes.‖ Pinkston v. 

State, 744 S.W.2d 329, 332 (Tex. App.—Houston [1st Dist.] 1988, no pet.).

4

 In 

 

3Allen specifically argues that trial counsel should have objected and not 

stipulated to his prior convictions primarily because, as Allen alleges, the pen 

packet introduced into evidence by the State as proof of one of the convictions 

shows a different date of the offense than stated in the written stipulation and 

fails to show that Allen waived his constitutional rights, ―including his right to a 

jury trial and his right to confront and cross-examine his accusers.‖ 

4Additionally, regarding any failure of trial counsel to object to the pen 

packet introduced in evidence as proof of one of the prior convictions, Allen‘s

plea of true relieved the State of proving the prior convictions for enhancement. 
11

the absence of any opportunity for trial counsel to explain his strategy, Allen has 

failed to overcome the strong presumption that his trial counsel provided

reasonably professional assistance. See Salinas, 163 S.W.3d at 740; Mallett, 65 

S.W.3d at 63; see also Gentry v. State, No. 06-11-00265-CR, 2012 WL 3023169, 

at *3 (Tex. App.—Texarkana July 25, 2012) (mem. op., not designated for 

publication) (presuming, when record silent, that counsel‘s advice concerning 

pleas of true to prior convictions used for jurisdictional enhancement was based 

on reasonable professional judgment), pet. struck, 2012 WL 5258490 (Tex. Crim. 

App. Oct. 24, 2012). We overrule Allen‘s third point.

IV. CONCLUSION 

Having overruled each of Allen‘s three points, we affirm the trial court‘s 

judgment. 

SUE WALKER

JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: August 22, 2013

 

See Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984); Ford v. State, 

243 S.W.3d 112, 117 (Tex. App.—Houston [1st Dist.] 2007, pet. ref‘d). Any 

objection to the pen packets would have been futile. See Hathorn, 848 S.W.2d 

at 126 (explaining that counsel was not ineffective for not making futile objection).