Majority and Dissenting Opinions filed September 19, 2017.

In The 

Fourteenth Court of Appeals 

NO. 14-16-00232-CR

MICHAEL E. C. DONALD, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 149th District Court 

Brazoria County, Texas 

Trial Court Cause No. 77089-CR

D I S S E N T I N G O P I N I O N 

Because I would find the first prong of Strickland has not been satisfied, I 

respectfully dissent.

In considering an ineffective-assistance claim, we indulge a strong 

presumption that counsel’s actions fell within the wide range of reasonable 

professional behavior and were motivated by sound trial strategy. Strickland v. 

Washington, 466 U.S. 668, 687, 694 (1984); see Thompson v. State, 9 S.W.3d 808, 
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813 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. 

App. 1994). To overcome this presumption, a claim of ineffective assistance must 

be firmly demonstrated in the record. Thompson, 9 S.W.3d at 814. In most cases, 

direct appeal is an inadequate vehicle for raising such a claim because the record is 

generally undeveloped and cannot adequately reflect the motives behind trial 

counsel’s actions. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 

2003); Thompson, 9 S.W.3d at 813–14. When the record is silent regarding trial 

counsel’s strategy, as here,1 we will not find deficient performance unless the 

challenged conduct was “so outrageous that no competent attorney would have 

engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

“[J]judicial scrutiny of counsel’s performance must be highly deferential” 

with every effort made to eliminate the distorting effects of hindsight. Robertson v. 

State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); accord Lopez v. State, 343 

S.W.3d 137, 143 (Tex. Crim. App. 2011). The Strickland court cautioned us to avoid 

an intrusive post-trial inquiry into attorney performance because such an inquiry 

would encourage the proliferation of ineffectiveness challenges. Robertson, 187 

S.W.3d at 483 (citing Strickland, 466 U.S. at 690). To that end, we are instructed 

that, in order for an appellate court to find that counsel was ineffective, counsel’s 

deficiency must be affirmatively demonstrated in the trial record. Lopez, 343 S.W.3d 

at 142. The Texas Court of Criminal Appeals further advises, “[w]hen such direct 

evidence is not available, we will assume that counsel had a strategy if any 

reasonably sound strategic motivation can be imagined.” Id. at 143.

The majority concludes trial counsel rendered ineffective assistance by 

stipulating to three prior convictions for family violence assault alleged in the 

 

1 Appellant filed a motion for new trial, but it did not include any grounds of ineffective 

assistance of counsel.
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indictment when only one such prior conviction was required for jurisdictional 

purposes. As noted in the majority, the indictment alleged appellant had four prior 

convictions for family violence assaults occurring in April 2009, May 2011, 

November 2013, and July 2015. After the indictment was read to the jury, appellant 

entered a plea of “not true” to the April 2009 conviction but pled “true” to the three 

remaining convictions. Following the testimony of the State’s witnesses, the 

following exchange took place: 

[The State]: It is, Your Honor. State, at this time, would like to tender 

and offer State’s 5, 6, and 7, certified copies of the three enhancement

paragraphs the defendant has pled true to, with the stipulation that we 

had just spoken about from the defense and agreed to outside the 

presence of the jury.

(State’s Exhibit Nos. 5, 6, and 7offered) 

[Defense Counsel]: No objections, Your Honor.

THE COURT: Those are all admitted. 

(State’s Exhibit Nos. 5, 6, and 7admitted) 

THE COURT: And in regard to the first enhancement paragraph?

[The State]: The State is going to abandon the first enhancement 

paragraph styled as Cause No. 169684 the defendant pled not true to.

THE COURT: All right. Thank you. 

Appellant’s complaint on appeal is that he “did not receive effective assistance 

of counsel where trial counsel . . . failed to stipulate to only one jurisdictional 

enhancement paragraph showing that Appellant has previously been convicted of 

assault family violence.” No complaint is made regarding appellant’s entry of “true” 

to the same three enhancement paragraphs to which trial counsel stipulated. The 

stipulation occurred outside the jury’s presence, after the close of the State’s 

evidence, and was made by trial counsel. Appellant’s pleas of true, on the other hand, 

were made in the jury’s presence, before any testimony, and were made by appellant. 

Thus one act was performed by trial counsel and the other was performed by 
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appellant. Given the fact that the two acts were also not contemporaneous, it was 

incumbent upon appellant to at least allege in his brief that his act of pleading “true”

in open court was, in any form or fashion, due to counsel’s ineffective assistance.

The jury was present when appellant entered a plea of “true” to the family 

violence assaults occurring in May 2011, November 2013, and July 2015. Absent a 

supporting record to the contrary, I cannot agree that trial counsel’s decision to then 

stipulate to the same three convictions is conduct so outrageous that no competent 

attorney would have done the same. Accordingly, I dissent.

 

 /s/ John Donovan 

 Justice 

Panel consists of Chief Justice Frost, Justices Donovan and Wise. (J. Donovan 

dissenting). 

Publish — Tex. R. App. P. 47.2(b).