IN THE

TENTH COURT OF APPEALS

No. 10-23-00040-CR

STEPHEN DEWAYNE WATKINS, 

Appellant

v.

THE STATE OF TEXAS, 

 Appellee

From the 19th District Court

McLennan County, Texas

Trial Court No. 2019-1041-C1

MEMORANDUM OPINION

Stephen Dewayne Watkins waived his right to trial by jury and pleaded guilty to 

the offenses of assault family violence by occlusion with a prior conviction for assault 

family violence, a second-degree felony, and assault family violence with a prior 

conviction for assault family violence, a third-degree felony. See generally TEX. PENAL 

CODE ANN. § 22.01. The trial court received the pleas of guilty and assessed Watkins’s 

punishment at twenty years and ten years, respectively, in the penitentiary. The trial 
Watkins v. State Page 2

court sentenced Watkins accordingly and ordered the sentences to run concurrently. This 

appeal ensued.

Background

In the original indictment filed on July 17, 2019, the State alleged that Watkins 

intentionally, knowingly, and recklessly cause[d] bodily injury to . . . the 

complainant, a person with whom the Defendant has or has had a dating 

relationship, . . . by intentionally, knowingly, and recklessly impeding the 

normal breathing or circulation of the blood of the complainant by applying 

pressure to the throat or neck of the complainant, and before the 

commission of the offense, the Defendant had previously been convicted of 

an offense under Chapter 22 of the Texas Penal Code, against a member of 

the Defendant’s family.

The original indictment alleged that the date of the offense was on or about April 3, 2019.

On December 15, 2022, the State filed a superseding indictment alleging that, on 

or about April 3, 2019, Watkins

intentionally, knowingly, and recklessly cause[d] bodily injury to . . . the 

complainant, a member of the Defendant’s household or a person with 

whom the Defendant has or has had a dating relationship, . . . by 

intentionally, knowingly, and recklessly impeding the normal breathing or 

circulation of the blood of the complainant by applying pressure to the 

throat or neck of the complainant, and before the commission of the offense, 

the Defendant had previously been convicted of an offense under Chapter 

22 of the Texas Penal Code, against a member of the Defendant’s family.

The superseding indictment also alleged, in an additional count, that, on or about April 

3, 2019, Watkins

intentionally, knowingly, and recklessly cause[d] bodily injury to [the 

complainant], a member of the Defendant’s household or a person with 

whom the Defendant has or has had a dating relationship, . . . by grabbing 

her throat and/or neck, and before the commission of the charged offense, 
Watkins v. State Page 3

the Defendant had previously been convicted of an offense under Chapter 

22 of the Texas Penal Code, against a member of the Defendant’s family.

Trial counsel did not move to dismiss or quash either count of the superseding 

indictment. The case proceeded to trial, but after voir dire Watkins decided to plead 

guilty and waive a jury trial.

Issue

In his sole issue, Watkins contends that his trial counsel was ineffective for failing 

to move to dismiss or quash the State’s superseding indictment because there was no 

language in the superseding indictment tolling the statute of limitations for the charged 

offenses and because the superseding indictment alleged additional conduct not alleged 

in the original indictment.

AUTHORITY

To prevail on an ineffective-assistance-of-counsel claim, the two-pronged test 

established by Strickland v. Washington must be met. Wiggins v. Smith, 539 U.S. 510, 521, 

123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003) (citing Strickland v. Washington, 466 U.S. 668, 

687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). Under Strickland, Watkins must prove 

by a preponderance of the evidence that (1) counsel’s performance was deficient and (2) 

the defense was prejudiced by counsel’s deficient performance. Strickland, 466 U.S. at 

687, 104 S.Ct. at 2064; Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Absent 

both showings, an appellate court cannot conclude that the conviction resulted from a 
Watkins v. State Page 4

breakdown in the adversarial process that renders the result unreliable. Thompson v. 

State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

To establish deficiency under the first prong of Strickland, it must be proven by a 

preponderance of the evidence that defense counsel’s representation objectively fell 

below the standard of professional norms. Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. 

App. 2009). To show prejudice, it must be shown that there is a reasonable probability 

that, but for defense counsel’s unprofessional errors, the result of the proceeding would 

have been different. Id. A “reasonable probability” is a probability sufficient to 

undermine confidence in the outcome, meaning counsel’s errors were so serious as to 

deprive the defendant of a fair trial with a reliable result. Id.

Our review of counsel’s representation is highly deferential, and we will find 

ineffective assistance only if the strong presumption that defense counsel’s conduct fell 

within the range of reasonable professional assistance is overcome. See Strickland, 466 

U.S. at 689, 104 S.Ct. at 2065; see also Stafford v. State, 813 S.W.2d 503, 508–09 (Tex. Crim. 

App. 1991). The right to “reasonably effective assistance of counsel” does not guarantee 

errorless counsel whose competency is judged by perfect hindsight. Saylor v. State, 660 

S.W.2d 822, 824 (Tex. Crim. App. 1983) (per curiam). “Isolated instances in the record 

reflecting errors of commission or omission do not cause counsel to become ineffective, 

nor can ineffective assistance of counsel be established by isolating or separating out one 
Watkins v. State Page 5

portion of the trial counsel’s performance for examination.” Ex parte Welborn, 785 S.W.2d 

391, 393 (Tex. Crim. App. 1990). 

Trial counsel should ordinarily be afforded an opportunity to explain his actions 

before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. 

App. 2003). When the record is silent regarding the reasons for counsel’s conduct, a 

finding that counsel was ineffective requires impermissible speculation by the appellate 

court. See Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). 

Therefore, absent specific explanations for counsel’s decisions, a record on direct appeal 

will rarely contain sufficient information to evaluate or decide an ineffective-assistanceof-counsel claim. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To warrant 

reversal without affording counsel an opportunity to explain his actions, “the challenged 

conduct must be ‘so outrageous that no competent attorney would have engaged in it.’” 

Roberts v. State, 220 S.W.3d 521, 533–34 (Tex. Crim. App. 2007) (quoting Goodspeed v. State, 

187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).

The Court of Criminal Appeals recently stated the following:

The Code of Criminal Procedure requires an indictment to indicate, 

on its face, that the prosecution is not barred by the applicable statute of 

limitations. Mercier v. State, 322 S.W.3d 258, 263 (Tex. Crim. App. 2010); 

TEX. CODE CRIM. PROC. ANN. art. 21.02(6). However, the Code provides that 

“[t]he time during the pendency of an indictment, information, or 

complaint shall not be computed in the period of limitation.” TEX. CODE 

CRIM. PROC. ANN. art. 12.05(b).

Although Article 12.05(b) says “an indictment,” in Hernandez v. State, 

we concluded that not just any indictment will toll the statute of limitations. 
Watkins v. State Page 6

127 S.W.3d 768, 772 (Tex. Crim. App. 2004). Otherwise, “a person could be 

continually indicted for any offense that the State felt inclined to charge 

once an initial indictment [is] filed.” Id. This would defeat one of the 

purposes of a statute of limitations, which is to require the State to exercise 

due diligence in obtaining and presenting a formal accusation against a 

person. Id.

Instead, we held that “a prior indictment tolls the statute of 

limitations . . . for a subsequent indictment when both indictments allege 

the same conduct, same act, or same transaction.” Id. at 774. “A subsequent 

indictment is barred by the statute of limitations if it broadens or 

substantially amends the charges in the original indictment.” Id. at 773.

A number of factors led us to this conclusion, including the 

fundamental requirement that an indictment must give a defendant 

adequate notice to prepare a defense. Id. at 772; see also State v. Moff, 154 

S.W.3d 599, 603 (Tex. Crim. App. 2004). Additionally, we noted that the 

United States Supreme Court recognized several purposes for a statute of 

limitations, one of which is to protect defendants from having to defend 

against charges that are brought when the basic facts have been obscured 

by the passage of time. Hernandez, 127 S.W.3d at 772 (quoting Toussie v. 

United States, 397 U.S. 112, 114–15, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970)). To 

ensure that the defendant can preserve those facts that are essential to his 

defense, the defendant must be given adequate notice of a charge. Id. 

“Allowing the prior indictment to toll the statute of limitations would not 

defeat the purposes of the statute of limitations if the prior indictment gives 

adequate notice of the substance of the subsequent indictment.” Id.

State v. West, 632 S.W.3d 908, 910–11 (Tex. Crim. App. 2021) (footnote omitted).

DISCUSSION

It is undisputed here that a three-year limitations period applies to the offenses 

alleged in this case, that the superseding indictment was filed more than three years after 

the alleged offenses were committed, and that the superseding indictment did not contain

tolling language. See TEX. CODE CRIM. PROC. ANN. art. 12.01(9). However, we cannot 
Watkins v. State Page 7

conclude on this record that Watkins’s trial counsel was ineffective for failing to move to 

dismiss or quash the State’s superseding indictment.

As to count one, the language used in the superseding indictment tracked the 

language used in the original indictment, except to add language describing the

complainant’s relationship with Watkins as being a member of Watkins’s household, in 

addition to alleging that Watkins and the complainant “ha[ve] or ha[ve] had a dating 

relationship.” The original indictment and the superseding indictment alleged the same 

offense of causing bodily injury by applying pressure to the throat or neck of the same 

complainant. Additionally, count one in the original indictment and the superseding 

indictment required proof that Watkins committed assault family violence by occlusion 

and that Watkins had been convicted previously of assault family violence. Although the 

proof involved in identifying the relationship between Watkins and the complainant may 

have differed slightly, every other element required the same proof. Thus, we conclude 

that the original indictment gave adequate notice to Watkins to prepare a defense. See 

West, 632 S.W.3d at 911; Childress v. State, 285 S.W.3d 544, 552 (Tex. App.—Waco 2009, 

pet. ref’d) (“[T]he conduct that the actor needs notice of is the assault, not the status of 

the actor’s relationship to the victim. It is not a crime to be in a dating relationship, and 

[the appellant]’s conduct would have been criminal had he poured the gasoline on a 

stranger.”). And we cannot say that count one of the superseding indictment broadened 

or substantially amended the offense alleged in the original indictment such that count 
Watkins v. State Page 8

one in the superseding indictment is barred by limitations. See Hernandez, 127 S.W.3d at

772. 

Watkins further contends that the superseding indictment, filed on December 15, 

2022, on its face was barred by limitations. Watkins cites Ex parte Alvear to support his 

contention. See 524 S.W.3d 261, 262 (Tex. App.—Waco 2016, no pet.). Watkins argues 

that a charging instrument that contains no tolling language and instead shows on its face 

that prosecution is absolutely barred by the statute of limitations is not reparable. 

However, in Alvear the issue of non-reparability of the charging instrument was only 

determined to be a required prerequisite before a defendant could seek relief from further 

prosecution via a pretrial writ of habeas corpus. Id. at 265.

Watkins also contends that Westrequires a finding that the lack of tolling language 

in the superseding indictment renders count one barred by limitations. We do not find 

West applicable here because the allegation in count one of the superseding indictment

did not allege a separate and discrete offense from the original indictment or alternative 

manner and means for the commission of the charged offense.

We conclude that article 12.05(b) of the Texas Code of Criminal Procedure tolled 

the limitations period during the pendency of the prior indictment as to count one. See

TEX. CODE CRIM. PROC. ANN. art. 12.05(b); see also Hernandez, 127 S.W.3d at 774. Thus, we 

cannot conclude that a motion to dismiss or quash would have been successful. 

Therefore, Watkins has not met his burden to demonstrate, by a preponderance of the 
Watkins v. State Page 9

evidence, that his trial counsel was deficient with respect to count one, and we will not 

address the prejudice prong of Strickland as to count one.

Additionally, with regard to count two, we cannot conclude that Watkins has met 

his burden of showing that his trial counsel was ineffective. The record is completely 

silent as to his trial counsel’s reason for not moving to dismiss or quash count two in the 

superseding indictment. Ordinarily, trial counsel must be afforded the opportunity to

explain his actions before being denounced as ineffective. See Rylander, 101 S.W.3d at 111. 

Furthermore, when the record is silent regarding the reasons for counsel’s conduct, a 

finding that counsel was ineffective requires impermissible speculation by the appellate 

court. See Gamble, 916 S.W.2d at 93. Thus, absent specific explanations for counsel’s 

decisions, a record on direct appeal will rarely contain sufficient information to evaluate 

or decide an ineffective-assistance-of-counsel claim. See Bone, 77 S.W.3d at 833. And 

because the record on direct appeal is rarely sufficient to decide an ineffective-assistanceof-counsel claim, “an application for a writ of habeas corpus is the more appropriate

vehicle to raise ineffective assistance of counsel claims.” Rylander, 101 S.W.3d at 110.

Despite the silence of the record, Watkins asserts that trial counsel’s failure to file 

a motion to dismiss or quash count two in the superseding indictment on limitations 

grounds was so outrageous that no competent attorney would have engaged in it. See 

Roberts, 220 S.W.3d at 533–34; see also Goodspeed, 187 S.W.3d at 392. Watkins cites Compton 

v. State to support his contention. See 202 S.W.3d 416, 421–22 (Tex. App.—Tyler 2006, no 
Watkins v. State Page 10

pet.). However, Compton is distinguishable from the case before us because, unlike 

Compton, this case did not proceed to a jury trial. See id. at 418. After voir dire, Watkins 

elected not to contest the charges and to plead guilty to both counts. The plea papers in 

our record contain a “Waiver of Jury Trial and Other Rights, Acknowledgements and 

Plea” for each count. In the waiver documents, Watkins waived the following rights: (1) 

to be silent, (2) to have the proceedings recorded by a court reporter, (3) to have ten days 

to prepare for trial following the appointment of counsel, (4) to have a jury trial, (5) to 

confront and cross-examine witnesses against him, and (6) to have a pre-sentence 

investigation report. The waiver documents also reflect Watkins’s guilty pleas to both 

counts, trial counsel’s affirmation that Watkins was competent and fully understood the 

admonishments and consequences of his pleas, the trial court’s conclusion that Watkins 

was competent and had been admonished and understood the consequences of his pleas, 

and the trial court’s approval of the waivers. The waiver documents are silent as to any 

potential last-minute agreements that may or may not exist between the State and 

Watkins, which could explain trial counsel’s actions.

In Compton, on the other hand, trial counsel’s poor performance during trial served 

as evidence of counsel’s error and the undeniable prejudice to Compton. See id. at 422–

23. Here, given the absence of evidence regarding trial counsel’s reason for not moving 

to dismiss or quash count two in the superseding indictment, we cannot conclude that 
Watkins v. State Page 11

the record in this case demonstrates the ineffectiveness of trial counsel as clear as 

Compton. 

Based on the foregoing, we cannot conclude on this record that Watkins’s trial 

counsel was ineffective. Thus, we overrule Watkins’s sole issue on appeal. 

Conclusion

We affirm the judgments of the trial court.

MATT JOHNSON

Justice

Before Chief Justice Gray,

Justice Johnson, and

Justice Smith

(Chief Justice Gray concurs.)

Affirmed

Opinion delivered and filed November 30, 2023

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