Affirmed and Memorandum Opinion filed December 7, 2023.

In The

Fourteenth Court of Appeals

NO. 14-22-00240-CR

PHILLIP LLOYD TRAHAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause Nos. 1584999

MEMORANDUM OPINION

The sole issue in this appeal is whether appellant Phillip Lloyd Trahan

received ineffective assistance of counsel at his trial for intoxication manslaughter

with a deadly weapon, a motor vehicle. Appellant hit and killed a cyclist while he 

was driving in a public park, did not stop and render aid, fled the scene, and ran 

into the woods, where he was later apprehended by law enforcement.

In this appeal from trial-court cause number 1584999, the jury found 

appellant guilty of the second-degree felony and found that appellant used a deadly 
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weapon during the commission of the offense. See Tex. Penal Code Ann. 

§§ 1.07(a)(17) (deadly weapon), 49.08 (intoxication manslaughter). The jury 

assessed punishment at imprisonment for 18 years. See Tex. Penal Code Ann. 

§ 12.33. Appellant was also charged and convicted of failure to stop and render aid

in trial-court cause number 1584710, in which the jury assessed punishment at 

imprisonment for 10 years with a recommendation for probation, which the trial 

court accepted. See Tex. Transp. Code Ann. § 550.021(c). No motion for new trial 

was filed.

On appeal, appellant contends his counsel was ineffective because: 

(1) counsel filed no pretrial motions outside of motions to continue; (2) counsel did 

not adduce evidence of appellant’s mental-health history and develop this issue for 

the jury; (3) counsel did not exclude evidence of extraneous misdemeanor 

offenses; (4) counsel did not request a jury instruction on the lesser-included

offense of driving while intoxicated; and (5) counsel did not object to prejudicial

social-media evidence presented by the State at the punishment phase.

Evaluating claims of ineffective assistance of counsel under the Sixth 

Amendment involves a two-pronged test: (1) whether counsel was deficient, and 

(2) whether the defendant suffered prejudice as a result of counsel’s error. U.S. 

Const. amend. VI; Strickland v. Washington, 466 U.S. 668, 687 (1984).

To establish that counsel’s actions were deficient, the appellant must show, 

by a preponderance of the evidence, that counsel’s actions fell below an objective 

standard of reasonableness. Strickland, 466 U.S. at 687–88; Hernandez v. State, 

726 S.W.2d 53, 55 (Tex. Crim. App. 1986). There is “a strong presumption that 

counsel’s conduct falls within the wide range of reasonable professional assistance; 

that is, the defendant must overcome the presumption that, under the 

circumstances, the challenged action ‘might be considered sound trial strategy.’” 
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Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 

(1955)). Courts should consider the reasonableness of counsel’s actions at the time, 

rather than viewing such actions through the benefit of hindsight. Strickland, 466 

U.S. at 689. The court should make this determination in light of all the 

circumstances in order to determine if the actions fall outside the wide range of 

professionally competent assistance. Id. at 690.

“Under most circumstances, the record on direct appeal will not be sufficient

to show that counsel’s representation was so deficient and so lacking in tactical or 

strategic decision-making as to overcome the strong presumption that counsel’s 

conduct was reasonable and professional.” Scheanette v. State, 144 S.W.3d 503, 

510 (Tex. Crim. App. 2004). Given this fact, trial counsel should ordinarily be 

afforded an opportunity to explain his conduct before being denounced as 

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

the absence of such an opportunity, when faced with an undeveloped record on 

direct appeal, “[c]ourts ‘commonly 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.’” Okonkwo v. 

State, 398 S.W.3d 689, 693 (Tex. Crim. App. 2013) (quoting Andrews v. State, 159 

S.W.3d 98, 101 (Tex. Crim. App. 2005)). Counsel’s actions are considered 

deficient only if the court finds, as a matter of law, that “no reasonable trial 

strategy could justify trial counsel’s acts or omissions, regardless of his or her 

subjective reasoning.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 

2011).

We have reviewed entire trial record, and without an evidentiary motion for 

new trial at which trial counsel was afforded an opportunity to explain his conduct, 
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we cannot conclude as a matter of law counsel had no reasonable trial strategy.

1

Further discussion of the alleged ineffective assistance would not serve any 

purpose and could possibly prejudice any future habeas-corpus proceeding on 

ineffective assistance of counsel.

We overrule appellant’s sole issue and affirm the trial court’s judgment as 

challenged on appeal.

/s Charles A. Spain

Justice

Panel consists of Justices Wise, Bourliot, and Spain.

Do Not Publish —Tex. R. App. P. 47.2(b).

1 We note that although there were oral discussions at trial that the jury would assess 

punishment, trial counsel did not timely submit a written election for the jury. See Tex. Code 

Crim. Proc. Ann. art. 37.07, § 2(b). When the trial court initially balked at the jury determining 

punishment, trial counsel stated, “I will be filing an affidavit of ineffective assistance of 

counsel.” Appellant and the State agreed that the jury should assess punishment, and the trial 

court agreed.