AFFIRMED and Opinion Filed October 6, 2021 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-19-00934-CR 

CHRISTOPHER JUSTIN SCARBOROUGH, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 199th Judicial District Court 

Collin County, Texas 

Trial Court Cause No. 199-82799-2019 

MEMORANDUM OPINION 

Before Justices Molberg, Goldstein, and Smith 

Opinion by Justice Goldstein 

 The jury convicted Christopher Justin Scarborough of assault against a police 

officer, a second-degree felony. See TEX. PENAL CODE ANN. § 22.01(b-2). The trial 

court assessed punishment at three years’ confinement in the Institutional Division 

of the Texas Department of Criminal Justice. In his sole issue on direct appeal, 

Scarborough argues he was denied his constitutional right to effective assistance of 

counsel. We affirm the trial court’s judgment. 

BACKGROUND 

On June 28, 2018, Plano police officer Robert Cassone initiated a traffic stop 

of Scarborough’s car for an improperly affixed paper license plate in a reputed high 
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narcotic and prostitution area. During the traffic stop, Officer Cassone observed 

multiple live pistol rounds in plain sight. Scarborough denied having a firearm in his 

possession but admitted to having a knife. Officer Cassone directed Scarborough to 

exit the car, removed Scarborough’s knife, placed it on the roof of the car, and asked 

Scarborough for consent to a search of the car.1

 Scarborough declined to give 

consent, and Officer Cassone called for a backup police officer as well as a K-9 unit. 

When Officer Cassone advised Scarborough that the K-9 unit was en route, 

Scarborough informed Officer Cassone that he intended to leave. Officer Cassone 

then advised Scarborough he was being detained and unable to leave. At this point, 

an altercation ensued, with Scarborough and Officer Cassone landing on the ground. 

While the altercation was ongoing, Officer Lederman arrived on the scene and 

assisted in subduing Scarborough. Both officers had body cams that recorded the 

altercation, and the videos, along with other unobjected-to evidence, were 

introduced to the jury. 

 During the guilt/innocence phase of the trial, all evidence and testimony was 

presented during the State’s case in chief, subject to direct, cross, re-direct and recross examination. The defense rested without introducing evidence or calling 

1

 In addition to being concerned about the presence of a firearm, Officer Cassone testified he suspected 

Scarborough might be under the influence of narcotics and have them in the car. He testified that his 

suspicion was based on: (1) Scarborough moving around in the car and reaching under the seat as Officer 

Cassone approached; (2) Scarborough lowering his window only slightly, which usually indicates an intent 

to disguise the smell of drugs; (3) Scarborough explaining that he had just been at a vape shop on his way 

home from work, despite other answers indicating he was thirty minutes out of the way and Officer 

Cassone’s knowledge that there were numerous vape shops near Scarborough’s home and work; and 

(4) Officer Cassone’s experience that the area was well known for drug trafficking. 
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witnesses. The jury found Scarborough guilty. The court received evidence during 

the punishment phase, including Scarborough’s testimony, and assessed 

punishment. This appeal followed. 

DISCUSSION 

The Sixth Amendment to the United States Constitution guarantees criminal 

defendants the right to effective assistance of counsel. Lopez v. State, 343 S.W.3d 

137, 142 (Tex. Crim. App. 2011). In his sole issue Scarborough asserts his trial 

counsel was constitutionally ineffective under the principles established in 

Strickland v. Washington, 466 U.S. 668 (1984), and United States v. Cronic, 466 

U.S. 648 (1984). To successfully assert a claim under Strickland, Scarborough must 

show by a preponderance of the evidence both that his counsel’s representation fell 

below an objective standard of reasonableness and that he suffered prejudice as a 

result. Strickland, 466 U.S. at 687; Perez v. State, 310 S.W.3d 890, 892–93 (Tex. 

Crim. App. 2010). To demonstrate such prejudice, Scarborough must show “there is 

a reasonable probability that, but for counsel’s unprofessional errors, the result of 

the proceeding would have been different.” Strickland, 466 U.S. at 694; Perez, 310 

S.W.3d at 893. 

 Ineffective assistance can be presumed prejudicial under Cronic where 

“counsel entirely fails to subject the prosecution’s case to meaningful adversarial 

testing.” Cronic, 466 U.S. at 659. For this presumption to apply, counsel’s failure to 

test the prosecution’s case must be complete. Id. This exception “is epitomized by 
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the ‘inert’ or ‘potted plant’ lawyer who, although physically and mentally present in 

the courtroom, fails to provide (or is prevented from providing) any meaningful 

assistance.” Ex parte McFarland, 163 S.W.3d 743, 752–53 (Tex. Crim. App. 2005). 

The difference between the Cronic and Strickland standards is thus “not of degree, 

but of kind.” Rubio v State, 596 S.W.3d 410, 428 (Tex. App—Dallas 2020, pet. 

granted) (citing Bell v. Cone, 535 U.S. 685, 697 (2002)). In other words, the 

standards distinguish between shoddy representation and no defense at all. Id.

Addressing the Cronic standard, Scarborough argues that prejudice may be 

presumed because his counsel was “virtually inert” and exerted only a “minimal 

effort” in his defense. Scarborough misconstrues Cronic, which requires that 

counsel’s ineffectiveness rise to a level analogous to a complete denial of counsel, 

not merely virtual inertness or minimal effort. See Cronic, 466 U.S. at 659. Here, the 

record reveals that Scarborough’s counsel orally argued and filed a written election 

of punishment, participated in jury selection, made an opening statement outlining 

his theory of the case, cross examined State’s witnesses, and made appropriate 

arguments to the jury. Regardless of whether Scarborough’s counsel was effective, 

in each of these pursuits, he was not “inert.” See McFarland, 163 S.W. 3d at 752. 

As Scarborough received some meaningful assistance, there was no constructive 

denial of counsel. Cronic does not apply. 

As for the Strickland claim, there is a “strong presumption that counsel’s 

conduct falls within the wide range of reasonable professional assistance.” 
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Strickland, 466 U.S. at 689; Perez, 310 S.W.3d at 893. If there is no record of trial 

counsel’s explanation for the conduct in question, we “assume a strategic motive if 

any can be imagined and find counsel’s performance deficient only if the conduct 

was so outrageous that no competent attorney would have engaged in it.” Andrews 

v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). For this reason, a direct 

appeal—where the record is generally undeveloped on these issues—rarely provides 

the proper vehicle for asserting a Strickland claim, which must be firmly grounded 

in and affirmatively demonstrated by the record. Prine v. State, 537 S.W.3d 113, 117 

(Tex. Crim. App. 2017); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 

2005). 

The record before us is insufficient to fairly evaluate whether either prong 

could be satisfied. Scarborough complains that his counsel failed to communicate 

with him before trial, failed to prepare himself or Scarborough for trial, and failed to 

defend Scarborough’s interests during trial. As evidence, Scarborough provides the 

reporter’s record, which consists of the trial transcript, and a hand-written letter 

Scarborough wrote to the trial court following his conviction. 

Scarborough’s unsworn hand-written letter to the trial court was filed on 

August 30, 2019, three weeks after the court entered its judgment of conviction. In 

the letter, he complained that his trial counsel failed to properly investigate the case, 

failed to present any evidence in his defense, failed to prepare Scarborough for trial, 

advised Scarborough to waive his right to a jury trial for the punishment phase, and 
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declined Scarborough’s request to “place [him] in a veteran’s court.”2

 Incompetent 

evidence cannot be used to meet the preponderance burden imposed by Strickland. 

See Weeks v. State, 894 S.W.2d 390, 392 (Tex. App.—Dallas 1994, no pet.) 

(concluding that the defendant failed to meet his burden with “competent evidence”). 

An unsworn letter is not competent evidence and thus cannot sustain a finding of 

ineffective assistance. See, e.g., Hughes v. State, No. 05-99-00846-CR, 2000 WL 

134691, at *2 (Tex. App.—Dallas Feb. 7, 2000, pet. ref’d) (mem. op., not designated 

for publication) (holding that the defendant failed to sustain his burden to prove 

effectiveness because he had not “identified any specific complaint about his trial 

counsel’s performance other than alluding to a letter he wrote to the trial court”); 

Carley v. State, No. 05-96-00089-CR, 1997 WL 348538, at *2 (Tex. App.—Dallas 

June 25, 1997, no pet.) (mem. op., not designated for publication) (rejecting 

defendant’s contention that his hand-written letter to the trial court was proof of his 

counsel’s ineffectiveness because the letter “[was] not sworn to and, thus, [could 

not] be considered evidence”). Accordingly, we do not consider the contents of the 

letter in our analysis. 

Scarborough next points to two exchanges between his counsel and the trial 

court as evidence of unpreparedness reflected in the record. In the first exchange, 

2

 Regarding the reference to “veteran’s court” we believe, without comment, Scarborough references 

Collin County’s establishment of a statutory “veterans treatment court program,” see ‘TEX. GOV’T CODE 

ANN. §§ 124.001–.007, that is available to veterans who are “arrested for, charged with, convicted of, or 

placed on deferred adjudication community supervision for any misdemeanor or felony offense.” See id.

§ 124.002(a). Scarborough’s appeal does not address this portion of the letter. 
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which occurred before voir dire, Scarborough’s counsel attempted to make an oral 

election of punishment and request for community supervision in the event 

Scarborough was found guilty. In the second exchange, which occurred after both 

parties rested, Scarborough’s counsel asked the trial court when the proper time 

would be to move for directed verdict. The trial court responded that the appropriate 

time was “after [the State] rested and before [the defense] rested.” Scarborough 

argues that these interactions with the trial court show that his trial counsel was 

unprepared for trial, rendering the representation constitutionally ineffective. We 

disagree. The record contains no evidence of counsel’s reasoning behind conducting 

these exchanges. See Jackson v. State, 877 S.W.2d 768, 772 (Tex. Crim. App. 1994). 

Absent such evidence, we cannot conclude that Scarborough has overcome the 

presumption of reasonable assistance. See id. 

Nor has Scarborough shown that he was prejudiced as a result of his counsel’s 

apparent lack of familiarity with procedural rules. With respect to the first exchange, 

the trial court, after a recess, allowed Scarborough to make the motions orally and 

the State did not object. The clerk’s record also indicates that, during the recess, 

Scarborough’s trial counsel filed a typed application for community supervision and 

a hand-written election for the court to assess punishment. The record shows that the 

trial court, not the jury, assessed punishment. After a thorough recitation of the 

evidence, the trial court concluded that confinement was warranted. On this record, 

we conclude that Scarborough has failed to show a reasonable probability that, but 
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for counsel’s lack of familiarity with the procedural requirements at issue, the 

outcome of trial would have been different. See Strickland, 466 U.S. at 694; Perez, 

310 S.W.3d at 893. 

With respect to the second exchange, Scarborough does not explain how his 

counsel’s lack of familiarity with the timeliness requirements for a motion for 

directed verdict resulted in prejudice. A motion for a directed verdict is construed as 

a challenge to the sufficiency of the evidence. York v. State, 342 S.W.3d 528, 544 

n.93 (Tex. Crim. App. 2011) (citing McDuff v. State, 939 S.W.2d 607, 613 (Tex. 

Crim. App. 1997)). In a criminal trial, it is not necessary to present a motion for a 

directed verdict in order to challenge the sufficiency of the evidence on appeal. See 

Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004) (citing Rankin v. State, 

46 S.W.3d 899, 901 (Tex. Crim. App. 2001)). The fact that a defense attorney “may 

or could have moved for the directed verdict on the possibility of its being granted 

does not show that trial counsel’s assistance was ineffective.” McGarity v. State, 5 

S.W.3d 223, 229 (Tex. App.—San Antonio 1999, no pet.). Scarborough has not 

challenged the sufficiency of the evidence in this appeal and thus has not shown that 

there is a reasonable probability that the result of trial would have been different but 

for counsel’s unfamiliarity with directed verdict practice. Strickland, 466 U.S. at 

694; Perez, 310 S.W.3d at 893. 

Scarborough finally complains that his counsel did not adequately represent 

his interests at trial because he failed to lodge any objections to the State’s proffered 
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evidence, conducted “cursory” and “irrelevant” cross-examinations of the State’s 

witnesses, and failed to put forth any evidence or witnesses in Scarborough’s 

defense. Because the record is silent as to counsel’s reasons for these tactical 

decisions, we cannot conclude that his conduct at trial was constitutionally deficient. 

See Jackson, 877 S.W.2d at 772. Furthermore, Scarborough does not explain how 

he was prejudiced by these decisions. Strickland, 466 U.S. at 694; Perez, 310 S.W.3d 

at 893. 

These complaints encapsulate the reasons courts generally wait to decide 

ineffectiveness issues until after the parties have engaged in the record-creating work 

that is the subject of habeas. We can imagine strategic motives for avoiding each of 

these topics in the trial. See Andrews, 159 S.W.3d at 101. Because the record does 

not affirmatively establish both deficient performance and prejudice, we overrule 

these complaints. See Strickland, 466 U.S. at 687; Perez, 310 S.W.3d at 892–93. 

CONCLUSION 

Scarborough on direct appeal has failed to show that his trial counsel was 

constitutionally ineffective. Accordingly, we overrule Scarborough’s sole issue and 

affirm the judgment of the trial court. 

DO NOT PUBLISH 

TEX. R. APP. P. 47.2 

190934F.U05 

/Bonnie Lee Goldstein/

BONNIE LEE GOLDSTEIN 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

CHRISTOPHER JUSTIN 

SCARBOROUGH, Appellant 

No. 05-19-00934-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the 199th Judicial 

District Court, Collin County, Texas 

Trial Court Cause No. 199-82799-

2019. 

Opinion delivered by Justice 

Goldstein. Justices Molberg and 

Smith participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED. 

Judgment entered this 6th day of October 2021.