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

NO. 03
- 19
- 00668
- CR

Ex parte Judy Stailey

FROM COUNTY COURT AT LAW NO. 7 OF TRAVIS COUNTY NO. C
- 1
- CR
- 19
- 100035 , THE HONORABLE CHUCK MILLER , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Judy Stailey appeals the denial of her application for writ of habeas corpus. S he

co ntends that the trial cour t erred by deciding that her trial counsel 1 render ed effective assistance

. She argues that her tri al counsel was in effective because he f ai l e d to object to the use of hearsay
to establ ish relevance and authenticity of an exhibit and fail ed to adequately communicate to her
th e State ’ s plea offer of deferred prosecution

. She also contends that the trial court erred by

c oncluding that laches ap p l ied to her application

. W e will affirm the denial of the application

.

BACKGROUND This appeal arises from Stailey ’ s collateral attack on her conviction for misdemeanor assault with bodily injury

. See Tex. Penal Code § 22.01(a)(1). In th at underlyin g

case , t he tria l court suspended the sen tenc e of sixty days in jail and a $4 ,000 fine and p laced
Stai ley on community supervision for t wo years , with a nine

- day jail t erm as a condition of

1 “ Trial counsel ” refers to counsel who represented S tailey a t the trial on the merits of the crimina l pros ecution, not her habe as p roceeding.2

probation

. After her direct app eals o f that conviction were overr u l ed, S tailey filed an application for writ of habeas corpus that the trial court denied

.

The crim inal trial 2

In the underlying trial, t he v ictim testified that she was not fr iends with Stailey
and tried to avoid her bec ause Stailey always seemed to h a v e drama going on , though non e of
th at drama had been with her. T he victim testified that , on the n ight of the incident, she was
at a hotel bar lounge in do wnto wn Austin

. While she talked with a grou p of people, she fel t something wet on her arm, felt a s harp pain on her wrist, and saw a wine glass falling to the ground. The victim testified that she then saw S tailey standing about eight to ten feet away. She
did not see Stailey thr ow the glass , but test ified that she heard Stailey say so mething alon g t h e lines of “ I did it. I did that, it was me. ”

A friend of Stailey ’ s who also knew the victim wa s standing one person aw ay from the victim when the glas s was thrown. She turned and saw Stailey about te n feet away ,

se parated from the victim by a cha i r. S he testified that she did not hear Stailey say anything after
the glass shattered

. Th e friend testified that Stailey usually drank wine and that, although she
did not see Stailey throw t he wine glass, she believed Sta iley threw it based on Stailey ’ s “ b a d history ” with the victim

.

A security agent at th e hotel tes tified that S tailey w as the first person he saw in a

room of the hotel bar . She had a wine glass in her hand. T he security agent testified that he
turned away to continue walking throu gh t h e bar , heard glass bre ak, and turned back

. He said he

2 S tate v. Stailey , No . C

- 1

- C R

- 16

- 500311 ( C nty. Court at L aw No. 7, Travis C nty ., Tex

. Apr . 5, 2017) , aff ’ d Stai l ey v. State , No. 03

- 17

- 00280

- CR , 2018 WL 3637304 (Tex. App.

— Austin Aug. 1, 2018 , pet. ref ’ d) (mem. op ., not de signated for publication)

.3

saw Staile y holding her middle finger in the air towar d a grou p of women who looked surprised

. He testified that he n ot ed th at S tailey no longer had a glass in her hand, so h e asked her if she
ha d thr own the glass ; he testifie d that Stailey told hi m that s he had thrown the glas s
. He testified
that S t ailey told h im that she had a pr ior disagreement with th e woman she targeted.

Another friend of Stailey ’ s test ified that he was at the hotel bar on th e night of the
incident. He saw her there and wa s talking to a man who wanted to be introduced to her, but Stailey left before he could make the introduction. He testified that h e did not see Stailey holding a d rin k, giving anyo ne “ the finger, ” or t alkin g to any security guards, but admitted that
he did n ot know if he was in the room at the time the incident occurre d.

During the victim ’ s testimony, t he State offered into eviden ce a recording of a
voicemail that t he victim said she had been given b y a m utual friend of Stailey an d the victim a few days after the incident. T he victim identified Stailey ’ s voice on the voicemail and said the
mutual fri end told her that he received i t a few days before the alleged inci dent. In th e voicemail , Stailey st ated:

Hi Bob, it ’ s Judy. Las t night I was out with Trish, and Bill was at the, uh, bar so I stopped to say h i to hi m. And we were talking for a while, jok ing and talking, and he sai d, “ Hey, [the victim ’ s] right behind me, ” and I didn ’ t notice, and the n I wa s l ike, “ Oh, okay. ” He s aid, “ What is her deal? ” This is what he said, he said,

“ She ’ s so sour, I don ’ t l ike her , ” and I ’ m like, “ Yeah, you get that t oo, I just don ’ t like her e ither, I just don ’ t care for her per sonalit y. She has none. She ’ s li ke rea lly, um, she ’ s sour. ” So, he and I had our conversation. I went back over to the table. Then she goes over ther e to h im, referring to me: “ Oh, I ’ m invi sible, ” and then she said s ome other things but she didn ’ t know that he do esn ’ t like her either

. So, you tell her next time I se e her out I ’ m gonna slap the fucking shit out of her. I ’ m tired of it. I ’ m not . . . I d on ’ t . . . I ’ m not with you and I ’ m n ot sleeping with you. I ha ve nothing to do with you. I ’ m gonn a slap the fucki ng shit out of her. An d you know what? She ’ s not gonna like it. So you better just tell your friend to stay away from me ‘ cause next time I he ar a s mart remark, and I ’ m proba

bly gonna do it anyway, I ’ m gonna slap the shit out of her. Cal l me [garbled].4

S tailey obj ected to the admission of the voicemai l , arguing that its probative value was substantially outweighed by its unfairly prejudicia l effect. See Tex. R. Evid . 403. T rial counsel
also mention ed hearsay when making the objection

. The trial court overruled t he objection and
admitted the voicemai l

.

On direct appeal from the conviction , this C ourt concluded that S t ailey did not
show t hat the trial court abused its disc retion by overruling h er Rul e 403 objection

. 3 T h is Co u r t
aff irm ed the judgment , and t he Cou rt of Cri min al Appeals refused the pet ition for rev iew

.

The application for habeas corpus proceeding

I n her applicati on for writ of habeas corpus , S tailey asserted that she was wrongly con victed and sentenced beca use she did not receive effective assi stance of cou nsel.
She complained that her trial couns el ’ s representation was defi cient because he (1) failed to object to the State ’ s use of inadmissible hearsay to authenticate t he voicemail message and (2 ) failed to advise he r that the State offered t o dismiss the underlying case pursuant to a deferred
pro secution agreement.

The trial court denied the application , making three findings of fact and three
conclusions of law in su pport. The trial court fou nd that Stailey ’ s del ay in filing her applicati on for habeas relief was patently unreasonable and that la ches applied to her application

. The t rial
court also concluded that her coun sel ’ s represe ntati on was effective, based on f indings that
counsel b oth o bjected to the releva nc e and authenticity of th e voicemail an d informed he r of
alternate off

ers for def

erred adjudication and deferred prosecution as evidenced by a hand written
note in the clerk ’ s file from the judge.

3 Stailey , 2018 WL 3637304 a t *3.5 ANALYSIS
S tailey co mpl ains that the trial co urt erred i n making all three finding s and

con clusi ons. She challenges the findings and conc lusion that laches applies to her application
and that her trial counsel rendered effective assis tance with regard to both the admission o f the
voice mail and the communicatio n of the pl ea offer.

Appl icable law

T o prevail on a post

- conviction application for writ of habeas corpus, the applicant bears the burden to prove by a preponderance o f the evidence the facts that would

en title her to relief. Ex par te Richardson , 70 S. W.3d 865, 870 (Tex. Crim. App. 2002). I n habeas proceedings, virtually every fact finding involves a credibility determination, and the factfinder
is the exclusi ve judge of the witnesses ’ c redibility

. Ex pa rte Mowbray , 943 S.W.2d 461, 465 (Tex. Crim. App . 1996).

We review a t rial court ’ s d ecision on a writ of habeas corpus for an abuse of discretion, affording “ almost total deference to a trial court ’ s determ ination of the historical facts
that the recor d supports e specially when t he trial court ’ s fac t findings are based on an evaluation
of credibility and demeanor. ” Ex parte Pete rson , 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) , overruled on other grounds by E x p arte Lewis , 219 S.W.3d 335 ( Tex. Crim. App. 2007) (quoting Guzman v. State , 955 S.W.2 d 85, 89 (Tex. Crim. App. 1997) ). An abus e of discret ion occurs only when the trial court acts arbitraril y, unre aso nably, or with out refe rence to guiding rules
and pri ncip les. Ex parte Ali , 368 S.W.3d 827, 830 (Tex. App.

— Austin 2012, pet. ref ’ d)

. T h e d eference to fact findings exten ds to mixed questions of law and fact th at turn on an evalua tion
of credibility and de meanor. Guzma n , 955 S.W.2d at 89. The trial court, as arbiter of witness6

credibility, may accept or reject all or any part of a witness ’ s testimony. Peterson , 117 S.W .3d

at 819 n. 68; see Can tu v. State , 253 S.W.3d 273, 282 (Te x. Crim. App. 2008)

. In r eviewing the

tr ial court ’ s decision to grant or deny habeas corpus relief, we consider the evidence presented in the light most favorable to the trial court ’ s ruling, reg ardless of whether the c ourt ’ s findings are implied or expli cit, or based on affidavit s or live testi mony, provided they are supported by the
record. Ex parte Wheeler , 203 S.W.3d 317, 325

– 26 (Tex. Crim. App. 2006 ); Ex parte Nugent , 593 S.W.3d 416, 4 23 (Te x. App.

— Houston [ 1st Dis t.] 2019 , no pet. )

.
Objection to the v oicemail

By point of error two , Sta iley cont ends that her trial counsel provided ineffective
assistance by failing to object to hearsay in the testimony adduced to establish the relevance an d authenticity o f a voicemail she left o n a n out

- of

- court declarant ’ s telephone.
T o pre vail on a claim of ineff ective assistance of counsel, the defendant must
show that trial counsel ’ s performance was deficien t and that a reasonable probability exists that
the re sult of the proceeding would have been different but for the deficiency. Strick land v.
W ashington , 466 U.S. 6 68, 687 (1984); Perez v. State , 310 S.W.3d 890, 892

– 93 (Tex. Crim. App. 2010). Any allegati o n of ineffectiveness must be firmly found ed and affirm at ively shown
in the record

. Goo dspeed v. Stat e , 187 S.W.3d 390, 392 (T ex. Crim. App. 2 005) (citing Thompson v. State , 9 S.W.3d 808, 813 (Tex. C rim. A pp. 1999)). T he appellant must establish both pro ngs of the S trick land test by a pr eponder ance o f the evidence. Perez , 310 S.W.3d

at 89 2

– 93

. Whether this test has been met i s to be judged on appeal by t he totali ty of the representation, not by iso lated acts or omissions. Rodriguez v. State , 899 S.W.2d 658, 665 (Tex. Crim. App. 1995).7 To s how deficient performance, the appellant must prove by a preponderance of
the evidence that counsel ’ s r epresentation fell be low the standard of professional nor ms. Garza

v. State , 213 S.W.3d 338, 347

– 48 & n.19 (Tex. Crim. App. 2007) (citi ng Strickland , 46 6 U.S.

at 688). There is a st rong presumption that counsel ’ s performance fell with in the wide range of

reaso nable professiona l assistance. Strick l and , 466 U. S. at 688

– 8 9

. Counsel ’ s performance is evaluated not in hindsight but from coun sel ’ s perspective at the time. Id. at 689

. To show
ineffective assistance of counsel for the failure to object during trial, an a ppellant mus t show
that the trial judge would have co mmitted error in overruling the objection. Ex parte White , 160 S.W.3d 4 6, 53 (Tex. Crim. App. 2004)

. The perfo rmance and prejudice aspects of a Stri ckland rev iew are mixed question s of law and fac t

. Strickland 46 6 U.S. at 698.

S ta iley contends that the voicemail ’ s r elevance depends on temporal proximity to the assault, a nd that the only eviden ce of proximity was the victim ’ s testimony that the out

- of

court declarant told her that he rec eived t he v oicem ail from S tailey a few days before the as sault. Stailey at tached a n affidavi t from the voicemail recipient to h er reply to the Sta te ’ s re sponse to her habeas petition ; he averred that he had seen Stailey and the victim interact almost weekly
in the seventeen mont hs before the incident. S tailey contends that admission of the voice mail
harmed her because it showed premeditation and prov ided proof needed to find her guilty beyond a reasonable d oubt despite the fact that no on e testified that they s aw her throw the g lass.
She notes that the State e mph asized the voicemail repeatedly i n its closing arguments.

Stailey ’ s counsel conte st ed the admission of the voicemail at trial

. He filed a pret rial motion in limine specifically regarding the voicem ail in which he re quested that, before parties and witnesses allud ed to the voicema il , th e offering party be required to obtain a ruling as
to hea rsay, relev ancy, and admissibility of the voicema il. On the record before the trial began,8

her trial counsel mentioned h earsay issues with the authent ication of the voicemail , and the court granted his motion in l imine concerning the voicemail

. D uring tr ial, the S t ate and Stailey ’ s counsel conducted a voir dire examin ation of the victim outside the presence of the jury regarding admission of the voicemail ; Stailey ’ s counsel ad duced testimony from the victim that her knowledge of when the voicemai l was sen t was based entirely on the recipient ’ s statement
that he had received it the week before the incident

. A f ter t he t rial cour t overruled the objection
and the S t ate offere d t he voicemail before the jury , S tai le y ’ s counsel stated , “ I ’ d just like t o

renew ou r objection as far as 403 hearsay

— ” a nd the court interrup ted and admitted the exhibit. Stailey ’ s counsel also cross
- examine d the victim and induced her to admit that she di d not kn ow what day Stailey left the voicemail. The victim testified th at she “ kne w ” the voicemail was from
the week before the incident because she had run into S t ailey at a nother restaur ant that we ek b ut , i n re s ponse to S tailey ’ s counsel ’ s question, the victim admitted that she had assume d tha t the
voicemail arrived after that meeting

. He also induced an admi ssion that Stailey did not slap her

as threatened in the voicemail

.

Sta iley co rrectly asserts th at the trial court ’ s finding that her trial cou ns el objected
to the voicemail based o n relevance is not support ed by the record

. Ho wever, S tailey has not
shown that the trial court erred by denying her habeas application because she has not shown that
her counsel ’ s performance overall was defi cient. Fi rst, it is not clear that a relevanc e objection

was warranted ; Stailey ’ s senti ments on the voicemail about the victim

— whenever they were
made

— have some relevance to th is assault on the vict im. See Tex. R. E vid. 401

. The trial court
would not have erred harmfully by overruling a rele vance objection. F urther , Stailey ’ s trial

coun sel mad e the court aware of the hearsay and a uthenticatio n issue and adduced supportive testimony

. He con ducted the voir dire exam ination and reiterated the objection when the exhibit9

was offered in front of the jury ; the trial court cut him off , saying “ I recal l the objection, and
sustain the rulin g. T he evid ence is admitted. ” Tr ial counsel may ha ve cho sen not to aggravate
the tri al court in fro nt of the jury by insisting on further expounding on the objections that
the trial court made clear it understood an d r ejected. He then adduced the victim ’ s admission
that she assumed that S tailey had left the voicemail e arlier in the week of the a ssault. Trial
counsel also filed motions, made othe r objections, examined witnesses , a nd ar gue d for acquittal
and l esser p uni shment. Based on the totality of th e representa tion, Stailey has not shown that
her trial counsel pr ovide d deficient repr esentation despite not objecting to admission of the
voicemail on the b asis of relevance

.

Further, Stailey has not shown a re asonable probability that any d eficien cy in her
counsel ’ s performa nce cause d a different result in the pro ceeding

. S tailey ’ s e xpress complaints
about testimony concerning the receipt of the voicemail elicited du rin g a voir dire examination of
the victim f

ail ; th at testimony was ou tside th e presence of the jury and did not affect the jury ’ s deliberations on gu ilt

/innocence

. F urth er, S t ailey did not show that , had her trial counsel made
the “ missing ” objection , th e trial court ’ s only choice was to e xclude t h e v oicem ails . Because
the victim identified Stailey ’ s voice on the voicemail, the trial court might hav e admitted the
voicem a il and instructed the jur y that the lack of evidence of the timing of the voicemail c ould
affect the weight the jury sh ou ld give it

. See Owens v. State , 56 S.W

. 2d 867, 86 8 (Te x. Crim. App. 1933). Consistent with that c oncept , Staile y ’ s trial counsel aske d questions before the jury
that cast som e do ubt on when the voicemail was received.

M ore critically, however, e vidence ot he r th an the voice mail fille d the same alleged “ gap ” in evidence on Stailey ’ s motive and identity as the thr ower of the wineglass :10

• Stailey ’ s fr iend t estified that Sta iley had bad history with the victim and t hat, beca use of that history , she bel ieved S t ai ley threw the glass

. She saw S tailey standing ten feet from the victim when the g lass shattered with no o ne between her and the victim

.

• The victim testif

ie d that she did not consider Stailey a friend and that she tri ed to avoid Sta iley because she seem ed to always have “ drama ” around her. The victim testified that, after she was hit by the wine glass , Sta il ey

— who was eight to te n feet away

— s miled and said something like “ I did it

. I did that, it was me. ”

• T he securi ty agen t testified that he saw S tail e y with a wi ne glass, heard glass break, saw Stailey wit hout a wine glass with her middl e finger extended, and heard Stailey admi t to h im that she threw the glass.

T his evidence su pport ed the jury ’ s finding beyond a r easonable doubt that Stailey committ e d the

assau lt irrespective of the voicem ail

. There is no reasonable probability on this record that the j udgment would have bee n different had trial counsel objected as Stailey asserts he should have. The implicit fin ding that S t ailey was not prejudiced by the admi ssion of the voicemail was not an
abuse of discretion.

Though the trial court erred by findin g t hat Stailey ’ s trial counsel object ed on the ground s of relevancy, it did not err by concluding that Stailey ’ s trial counsel provided effective

ass i st ance. St ailey has not shown that t he trial cour t abuse d its discretion by d enying the habeas petition o n this asserted groun d for relief.

We overrule point o f error two.

Informing Sta iley about the plea offer

By point of e rror three, S tailey assert s that her t rial atto rney ’ s representation was
deficient because he did not communicate the State ’ s offer of a deferred pro sec utio n plea agreement. Stailey contends that she was h armed by th is failure because her goal w as to have
the case dismissed and he r record exp unged.11 D efense cou nsel must communicate formal offers from the prosecution to accept a plea o n terms and conditions that may be favorable to the accused. M issouri v. Frye , 566 U.S. 134, 145 (2012). A defense attorney ’ s failure to inform a cr iminal defendant of plea offers made by the State is an omission that falls below an objective standard of professional

r easonabl eness. Ex parte L emke , 13 S.W.3d 791, 795 (Tex. Crim. App. 2000) , overruled on other grounds by E

x p arte Argent, 393 S.W.3d 78 1 ( Tex. Crim. App. 2013

. )
S tail ey filed an affidavit in the hab eas proc eeding stat ing that she first heard “ the
full details ” of th e deferred prosecution plea offer from her post

- convictio n attorney in 2019

. Sh e stated that her trial counsel told her o n February 7, 20 17 , about a plea offer while she was
distrac ted by rush

- hou r traffic; she said her attorney was concerned about the security agent ’ s potential testimony, but she said she nev er spoke to a security g uard. She averred that , had her
counsel communicated the d efer red pr osecution offer , she would have i mme diately acce pted it

. She stated that counsel did not bring up the plea offer at the February 8 , 2017 trial setting that

was co ntinued

. In re s po nse , the Sta te of fered an affidavit from St ai ley ’ s trial couns el stat ing that he relayed every plea offer to S tailey , in cluding a deferred adjudication offer an d a deferred prosecution offer. He stated that Stailey rejected both offer s and specifically that she rejected
the deferred pro secuti on o ffer at the Februa ry 8, 20 17 trial setting

. The S tate also offe red a docume nt t hat it said was a photocopy of the inside case jacket cover of S t ailey ’ s trial case file.
T hat document indicat e s that the “ 2

- yr deferre d prosec ut [ion] ” offer was declined on February 8,
201 7, and t he “ 1 8 month deferred ” offer was de clined on April 3, 2017 ; the S t ate asserts that the
initials “ EE ” on the notes show that Judge Elizabeth Earle noted Stailey ’ s rejecti on of the plea offers.12 Stailey attached to her reply to the S t ate ’ s response a supplementa l aff idavit in
which she assert ed th at her trial coun sel never explained to her that the deferred prosecution offer was qualitatively different from a deferred adj udication offer . She aver red that, had she
known that she would not be supervised by a proba tion officer and the arrest could be expunged
af ter c ompleting the deferred prose cution term , she would have accepted th at plea offer.

T he habeas trial court fou nd that trial counsel i n fo rmed Stailey of plea offers for
deferr ed prosecution and deferred a djudi cation

. We must defer to the f actual findi ngs o f the trial judge even when the evidence is submitted by affidavit. Ex parte Thompson , 153 S.W.3d 416, 425 (T ex. Crim. App. 2005) ; Manz i v. S tate , 88 S.W.3d 240, 242

- 43 (Tex . Crim. App. 2002).
The tria l cou rt could reas onab ly have found th e a s s e r t i o n s i n S t a i l e y ’ s a f f i d a v i t n o t c r e d i b l e or found that her trial counsel told her of the offer and that she expressed und erstanding of it, even if she later developed a different op inion about it

. S ome of S tai ley ’ s assertion s about counsel ’ s

com munication i n he r affid avit are contradicted by her trial cou nsel ’ s assertions in his affidavit

. Regarding credibility more ge nerally , h er assertion in her affidavit t h at she did not speak t o

a security guard at all is con tradicted by the hotel se curity a gent ’ s trial tes timony that they

conv ersed and she admitted throwing the glass . We defer to the trial court ’ s choices in ass essing
the evidence before i t and its finding of fact that Stail ey ’ s trial counsel informed her of the deferred prosecution offer

.

T he tria l co urt ’ s finding that S t ailey ’ s trial counsel informed her of the deferred
pr osecution offer supports the habeas trial court ’ s conclusion th at her trial counsel ’ s representatio n of her was effective

. S taile y has fai led to show that the trial court abused its
discretion in denying her hab eas application on this basis

. We need not analy ze the second13

prong of S trickl and on this issue. Stailey has not shown that the trial court a bused its discretion
b y denying her application for writ o f habeas corpus.

We overrule point of error three. 4

CONCLUSION
Because S t ailey did not show th at her counsel provided inef fect i ve representation , w e affirm the judgment denying S tailey ’ s appl ication for writ of h a beas corpus.

_____________________ _____________________ Da r lene Byrne , Chief Justice
B e fore Chief Justice Darlene Byrne, J ustices Triana and S mi th
Affirmed
Filed: August 13, 2021
Do Not Publish

4 Because we have concluded that the trial court di d not abuse its discretion by denying S tailey ’ s application for writ of habea s c orpus on its merits , w e need not c onsider whether Stailey ’ s application is barred b y laches un der point of error one

. See Tex . R. App. P. 47.1.