Affirmed and Memorandum Opinion filed December 7 , 2023
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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 C a use No s . 1584999

MEMORANDUM OPINION The sole issue in this appeal is whether a ppellant Phillip Lloyd Trahan received ineffective assistance of counsel at his trial for intoxication manslaughter with a deadly weapon , a motor ve h icle

. A ppellant hit and k i l led a cyclist while he was driving in a public park , did not stop and render aid, f le d the scene , and ran into the woods, where he was lat e r appre h ended by law enforcement.
In thi s appeal from trial

- court cause number 1584999 , t he jury found
ap pe llant gu i lty of the second

- degree felon y and f ound that app ellant used a deadly2

weapon during the commission of the offense

. See Tex. Penal Code A nn

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

. The jury assessed punishment at impri sonment fo r 18 y ears

. See Tex. Penal Code A nn

. § 12. 33. Appellant was also c h arged and conv icted of failure to stop and render aid in trial

- court cause number 158 4710 , in which the jury assessed punishment at imprisonment for 1 0 y ears with a recommendation for proba t ion, 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 coun s el was ineffecti v e because : (1 ) cou n sel filed no pre trial motions outside of motions to conti nue ; (2) c o unsel did
not adduce evidence of a ppellant’s mental

- health history and develop this issue for the jury ; (3) counsel did not exclude evidence of extraneous misdemeano r offenses ; (4) counsel did not request a jury instruction on the lesser

- include d

o ffense o f driving while intoxicated ; and ( 5) counsel did not object to prejudicial social

- media evidence presented by th e State at the punishme nt phase.

E valuating claims of ineffe ctive assistance of counsel under the Sixth Amendment involves a two

- pron ged test: ( 1) whether couns el was deficient, and (2) whether the def

endant suffered pr ejudice as a result of counsel’s error. U.S. Const. am e nd. VI; Strickland v. Washington , 466 U.S. 668, 687 (1984).

To es tablish that counsel’s actions were deficient, the ap pellant must sho w, by a prepond erance of the ev idence, that counsel’s actions fell below an objective

s tan dard of reasonableness. Strickland , 466 U.S. at 687

– 88; Hernandez v. State , 726 S.W.2d 53, 55 (Tex. Crim. App

. 198 6). There is “a strong presumptio n t hat

cou nsel’s cond uct falls withi n the wide rang e of reasonable professional assistance; that is, the def

endant must ove rco me the presumption that, under the circumstances, the challenged action ‘might be considered soun d trial strategy.’”3

Strickland , 4 66 U.S. at 689 (quoti ng Michel v. Lo uisiana , 350 U. S. 91, 101 (1955 )). Courts should consider the reasonable ness of counsel ’s actions at the time, rather than viewing such actions through the benefit of hinds ight. Strickland , 466 U.S. at 689

. The c ourt sho uld make t his determi nation in light of all the circumstances in order to de termine if the a ctions fall outside the wide range of
pro fessionally com pet ent assistance. Id . at 690.

“ Under most circumsta nces, the record on direct appeal will not be s ufficient
to show t hat counsel ’s representation was so deficient and so lacking in tactical or strategic decisi on

- making as to overcome the s trong presumpti on that counsel’s conduct was reasonable and professi onal.” Scheanett e v. State , 144 S.W.3d 503, 510 (Tex. Cr im. App. 2 004). Given this fact, trial counsel should ordina rily be afforded an opportunity to explain his conduct before being deno unced as ineffe cti ve. Goodspeed v. State , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) . In the absence of such an opp ortunity, wh en face d with an u ndeveloped record on direct appeal, “[c ]ourts ‘commonly assume a strategic motive if any can be imagined and fi nd counsel’s pe rfo rmance deficient only if the conduct was so outrag eous that no com petent attorney would have enga ged in it .’” Okonkw o v. State , 398 S.W.3d 689, 693 (Tex. Crim. App. 2 013) (quoting Andrews v. State , 159 S.W.3d 98, 101 (Tex. Crim. App. 2005 )). Counsel’s a cti ons are considered deficient only if the court fin ds, as a matter of law, that “no reasonable tri al
strate gy could j ustify tria l counsel’s acts or omissions, regardle ss of his or her subjective reas oning.” Lopez v. State , 343 S.W.3d 137, 143 (Tex. Crim. Ap p. 2011)

. We have review ed entire trial reco r d , and without a n evidentiary motion for new trial at which t ria l cou n s el was affo rded an opportunity to explain his conduct,4

we cannot conclude as a matter of law counsel had no reas onable trial strategy

. 1 Further discussion of the alleged ineffective assista n ce would not serve any purpose and could possibly prejud ice any fu ture ha b eas

- corpus proceeding on ineffective assistance of counsel.

We overrule appellant ’ s sol e issue and a ffirm th e tria l c ourt ’ s jud gment as challen ged on appeal

.

/s Charles A. S pa i n J usti c e

Pa n el con sists of Justi ce s Wi s e , Bourli ot , and Spain

. Do N o t Publish

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T ex. R. App. P. 47.2(b)

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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 th e jury

. See Tex. C ode Cr im. Proc. Ann. art. 37.07, § 2(b). When th e trial court initially balked at the jury determ in ing punishment, trial cou n sel stated , “ I will be filing an affidavit of ineffective assistance of counsel. ” Appellant and the State agre ed that th e jury shou ld ass ess punish ment, and the trial court agree d

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