IN THE

TENTH COURT OF APPEALS

No. 10-10-00425-CR

JASON WESLEY TATE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 19th District Court

McLennan County, Texas

Trial Court No. 2010-398-C1

MEMORANDUM OPINION

Jason Wesley Tate was convicted of evading arrest with a motor vehicle which 

was a third degree felony because Tate had a prior conviction for evading. See TEX.

PENAL CODE ANN. § 38.04(b)(2)(A) (West 2011). He was sentenced to nine years in 

prison. In his sole issue, Tate argues that his trial counsel was ineffective for not 

requesting an instruction on a lesser included offense. We affirm.

To prevail on a claim of ineffective assistance of counsel, an appellant must show 

that (1) counsel's representation fell below an objective standard of reasonableness, and 

(2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 
Tate v. State Page 2

668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Unless an appellant can prove both 

prongs, we must not find counsel's representation to be ineffective. Id. at 687. 

There is a strong presumption that counsel's performance fell within the wide 

range of reasonably professional assistance. Lopez v. State, No. PD-0481-10, 2011 Tex. 

Crim. App. LEXIS 826, *9 (Tex. Crim. App. June 15, 2011); Robertson v. State, 187 S.W.3d 

475, 483 (Tex. Crim. App. 2006) (citing Strickland, 466 U.S. at 689). In order for us to find 

that counsel was ineffective, counsel's deficiency must be affirmatively demonstrated in 

the trial record. Lopez, 2011 Tex. Crim. App. LEXIS 826 at *10; Thompson v. State, 9 

S.W.3d 808, 813 (Tex. Crim. App. 1999). When such direct evidence is not available, we 

will assume that counsel had a strategy if any reasonably sound strategic motivation 

can be imagined. Lopez v. State, 2011 Tex. Crim. App. LEXIS 826, at *10. Further, on 

direct appeal, the record is usually inadequately developed and cannot adequately 

reflect the failings of trial counsel for us to fairly evaluate the merits of such a serious 

allegation. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

Tate contends that trial counsel should have requested an instruction on the 

offense of fleeing a police officer. See TEX. TRANSP. CODE ANN. § 545.421 (West 2011). 

The record is silent as to why counsel did not request such an instruction. Although 

Tate contends that fleeing a police officer is a lesser included offense of evading arrest 

in a motor vehicle, counsel may have believed that it is not. See Farrakhan v. State, 247 

S.W.3d 720, 722-23 (Tex. Crim. App. 2008) (The Court of Criminal Appeals approved of 

the Fort Worth Court of Appeals’ decision that the offense of fleeing a police officer was 
Tate v. State Page 3

not a lesser-included offense of evading arrest or detention.); see also McKithan v. State, 

324 S.W.3d 582, 593 (Tex. Crim. App. 2010). 

Furthermore, we are not unaware of the defense strategy when the defendant 

believes the State has overcharged the offense. It is a perfectly valid trial strategy for a 

defense counsel to forgo a lesser included charge when the defense believes that the 

State has charged a higher offense than the State can prove beyond a reasonable doubt. 

By this strategy, the defense forgoes the objection or request for a verdict on a lesser 

charge so that if the jury does not convict on the charged offense, the defendant is 

acquitted. The State forgoes the submission of the lesser charge in the hopes of nudging 

the jury towards the conviction on the higher charge by not giving them a lesser charge 

on which to find the defendant guilty. The State’s strategy is to not give the jury an 

option between the higher charge and a lesser charge but only to have the option of 

conviction on the higher charge or acquit. On the other side, the defense, by not 

compelling the inclusion of the lesser included offense in the charge, weighs the 

alternatives and decides to run the risk that the jury will acquit rather than convict on 

the greater offense. That is why it is called a strategy and is not automatically 

ineffective assistance of counsel. Thus, even if fleeing a police officer were a lesser 

included offense of evading arrest with a motor vehicle, we do not know, from this 

record, if counsel was pursuing a trial strategy.

Accordingly, because trial counsel’s alleged deficiency is not affirmatively 

demonstrated in the record, Tate has failed to meet his burden under the first prong of 

Strickland. His sole issue is overruled.
Tate v. State Page 4

Having overruled his sole issue on appeal, we affirm the trial court’s judgment.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed July 13, 2011

Do not publish 

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