## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 20

- 00037

- CR

TONYA RUTH BARNETT , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 5th District Court Bowie County, Texas Trial Court No. 18F0717

- 005

Bef ore Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Justice Stevens2 

### ME MORANDUM OPINION
A Bowie County jury found Tonya Ruth Barnett guilty of murder and assessed a sentence of twenty

- five years’ imprisonment

. See T E X
. P ENAL C ODE A NN
. § 19. 02(c)

. On appeal, Barnett complains that her trial counsel was constitutionally ineffective 1 because counsel did not adequately discuss and admonish Barnett about the d isadvantages of submitting the jury charge without an instruction on the lesser offense of m anslaughter. Upon review of the record, we find Barnett has failed to meet the requirements of Strickland v. Washington 2 and , therefore , cannot show that she recei ved ineffective assistance of counsel. As a result, we affirm the trial court’s judgm e nt. I. Background By her own testimony , B a rnett acknowledged shooting her boyfriend, C.J. Ellis , after an argument . She told the jury that she and Ellis had been romantically involved for about three months before the events leading to Ellis’s death. At some po int during th at period, Barnett was contacted by the mother of Ellis’s child

. Barnett discovered that Ellis was still r omantically involved with th at woman . Barnett was upset after learning that the mother would accompany Ellis on an upcoming fam i ly trip , while Barnett w as not invited

. As a result, B a rnett br o k e off her relationship with Ellis on May 23

. According to Barnett, i n the early morning of May 24, 201 8 , Ellis came to Barnett’s house enraged about a tele phone call he claim ed he re ceived from her. Barnett denied having

1 See U.S. C O NS T
. a m end VI.

2 Strickl an d v . Washington , 466 U.S. 668, 687

– 88 (1984)

.3

called and demanded that Ellis show her his cell phone. An argument ensued, in which Ellis beat and choked Barnett

. Fearing for her life, Barnett picked up a gun and shot Ellis in the back of his head. Ellis was d ead at the scene by the time emergency responders arrived.
II. Standard of Review As many cases have noted, the right to counsel does not mean the right to errorless counsel. Robertson v. State , 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). “ In order to prevail

on a claim of ineffective assistance of counsel , the defendant must satisfy the two

- pron ged test set for th in Strickland

. . . . ” Lampkin v. State , 470 S.W.3d 876, 896 (Tex. App.

— Tex arkana, 2015, pet. ref ’ d) ; s ee Ex parte Imoudu , 284 S.W.3d 866, 869 (Tex. C rim. Ap p. 2009) (orig. proceeding) . The first prong require s a sh owin g that cou nsel ’ s p erformance fell below an objective standard of reasonableness. Stricklan d , 466 U.S. at 68 8 . This requirement can be difficult to meet since there is “ a strong presump tion th at counsel ’ s conduct falls within the wide range of r ea s o na ble professional assis tance. ” Id. at 689. “ This measure of deference, however, must not be watered down into a disguised form of acquiescence. ” Profitt v. Waldron , 831 F.2d 1245, 1248 (5t h Cir. 1987) (finding ineffective assistance where counsel f ai l e d to r equest medical rec ords and relied on court

- appointed competency examination when he kn ew client had escaped from mental institution). The second Strickland prong, often called “the pr ejudice prong,” requires a showing that, but for counsel’s u np r o fe ssio nal error, there i s a reasonable probability that the result of the proceeding would have been different. Strickland , 466 U.S. at 694. “A reasonable probability”
is defined as “a proba bility sufficient to undermine confidence in the outcome.” Id

. T hus, to4

establish prej udice, an applicant must show “that counsel’s errors were so serious as to deprive defendant of a fair trial, a trial whose result was reliable.” Id. at 687

. It is no t suffi cient for

a pplicant to show “that the errors had som e c o n c e ivable effect on the outcome of the proceeding.” Id. at 693

. Rather, h e must show that “there is a reasonable probability that, absent the errors, the fact [

- ] finder would have had a reason able do ubt respecting guilt.” Id. at 69 5

. The applicant h as t h e burden to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Alle gations of ineffectiveness must be ba sed on the record, and the presumptio n of a sound trial
st r ate g y c annot be overcome absent evidence in the record of the attorney’s reasons for his
conduct. Busby v. State , 990 S.W.2d 263, 2 68

– 69 (Tex. Crim. App. 1999). The reviewing court must look to t he tota lity of the representation, an d its decision must b e ba s e d on the facts of the particular case, viewed at the time of counsel’s conduct so as to eliminate hindsight bias. Strickland , 466 U.S. at 69 0 . In all cases, the “ultimate focus of inquiry mu st be o n the fundamental fairness of th e proceeding.” Id. at 6 9 6 , Ex parte Martinez , 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (orig. proceeding)

. A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. Sta te , 101 S.W.3d 107, 110 (Tex. Cr im. App. 2003) . Allegatio n s o f i n effectiveness

“ must ‘ be firmly founded in the record. ’” Bone v. State , 77 S.W.3 d 828, 833 n.13 (Tex. Crim. App. 2002) (quoting Thompson , 9 S.W.3d at 813 ) . The Strickland test “ of necessity requir es a

case - by

- case examin ati on of the evidence. ” W illia m s v . Taylor , 529 U.S. 362, 382 (2000) (quoting Wrigh t v. West , 505 U.S. 277, 308 (1992) (Kennedy, J., concurring in judgment) )

.5

When a claim of ineffective assistance of counsel is raised for t he firs t time on direct appeal , t he record “ is in almost all c a s es inadequate to show that counsel ’ s conduct fell b elow an objectively reasonable standard of performance. ” Andrews v. State , 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). Even so, “ when no rea sonable trial strategy could j ust ify the trial counsel ’ s condu c t , counsel ’ s performance falls below an objective st andard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel ’ s subjective reasons for acting as she did. ” Id

. More ove r, where the reviewing c ourt “ c an conceive potential reasonable trial strategies t hat counsel could have been pursuing, ” the court “ simply cannot conclude that counsel has performed deficiently. ” Id

. at 103. Essentially, when a party raises an ineffec tiv e assistance of counsel claim f or the first time on direct appeal, the defendant m ust show that , “ under prevailing professional norms, ” Strickland , 466 U.S. at 690, no competent attorney would do what trial counsel did or n o compe tent attorney would fail to do what trial counsel faile d to do. Andrews , 159 S.W.3d at 102.
III. Analysis Barnett claims that trial counsel was ineff e c tive for not sufficiently explaining to her the advantages and disadvantages of including a jury charg e instr uction on the lesser offense of manslaughter. Tha t sai d , B ar nett offers no argument or authority to suppor t her claim that trial counsel’s performance was constitutionally deficient. There is nothing in the record suggesting trial counsel’s strate gy or h er reasons for her choices in her rep resentation o f Bar n e tt

. More over , Barnett’s appellate brief offers no argu ment or discussion for whether manslaughter indeed was a6

lesser

- included offense of murder as alleged in this case 3 or whether Barnett wa s entit led to a jury instruction on this ma tter. Becaus e Barn e t t f ailed to satisfy Strickland ’s first requir e ment, we find that she has failed to show ineffective assistance of counsel at trial. While the record is silent about trial counsel’s thinking a bout re questing a jury instruction on a lesse r o ffense, Barnet t he rself told the trial court that she did not wish such an instruction to be included in the jury’s charge. After the State rested its case

- in

- chief and the trial court denied Barnett’s motio n for a directed verdict, she took the stand on the mat ter of t h e charge. Out s ide
t he jury’s presence, Barnett testified that (1) she was aware of her Fifth Amendment right , yet , wanted to testify before the jury; (2) she would be subject to cross

- examina tion by the State’s attorney; and (3) she did not want th e cou r t t o submit a n i n stru ction on the lesser

- included offense of manslaughter. As to the lesser

- offense option, Barnett also testified that she understood , upon a conviction for murder, she would face a verdict of between five and ninety

nine yea rs’ i mpr ison m e nt , versus a pe na lty range of two to twenty y ears’ confinement if convicted of the le sser offense of manslaughter. The Texas Court of Criminal Appeals has acknowledged that pursuing an “all or not hing”
model with the jury charge

— consciousl y cho osi ng t o su bmit only the h igh er, indicted o ffense for conviction rather than include one or more lesser

- included offenses with lower ranges of punishment

— “ is a valid trial strategy [ , and] defense couns el is n ot ineffective for declining to

3 In Dowden v. State , 758 S.W.2d 264, 270

– 71 (Tex. Crim. App. 1988) , the defendant was not entitled to an instruction on the l esser o ffense of manslaughter where there was no evidence t ha t he acted with mere r ec kle ssness . Yet , the murder defendant in Moore v. State , 969 S.W.2d 4, 11 (Tex. Crim. App. 1998) , was entitled to an instruction on manslaughter because there was evidence that h e could have acted recklessly.7

request a lesser

- inc lud e d

- o ffense instruc ti on. ” Grey v. State , 298 S.W.3d 644, 655 (Tex. Crim. App. 2009)

. On appeal , Barnett argues, without source or support, that her trial counsel did not admonish Barnett suffic iently as to the hazards of proceeding without a jury in str uct i o n on a lesser of fe nse . There is no record establishing whether trial counsel explained the advantages and disadvantage s of including an instruction authorizing a conviction on a lesser charge , the

e xtent of Barnett’s apprehension of such i nformati on , or h ow much or how l it tle counsel and Barnett discussed this matter. Barnett’s situation demonstrates why “[c]laims of ineffective assistance are seldom successfully navigated on direct appeal.” Rees e v. State , 273 S.W.3d 344,
348 (Tex. App.

— Texarkan a 2 008 , no pet. )

. On th e rec ord before us, we find that Barnett has failed to “rebut the presumption ” that trial counsel acted reasonably in her decisions and strategy. Thompson , 9 S.W.3d at 814 . S he has thus failed to show ineffectiveness of c ounsel. As a r e s ul t, we overrule Barn et t’s only point of error. IV. Conclusion For these reasons, the trial court’s judgment is affirmed.

Scott E. Stevens Justice Date Submitted: October 26, 2020 D ate Dec ided: Dec ember 9 , 2020 Do Not Publish