ineffective assistance claim in Texas

2026“An ineffective-assistance claim must be ‘firmly founded in the record, and ‘the record must affirmatively demonstrate’ the meritorious nature of the claim.” Gomez v. State, 552 S.W.3d 422, 432 (Tex. App.—Fort Worth 2018, no pet.) (quoting Thompson, 9 S.W.3d at 813 ).

2025A party asserting an ineffective- assistance claim must overcome the “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.” See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

2026App. 1986) (applying Strickland to an ineffective assistance claim under the Texas Constitution). -2- 04-25-00109-CR To show deficient performance, a defendant must show “errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687 .

2026An ineffective assistance claim “must be firmly rooted in the record.” Id. at 782 .

2020When the record is silent about trial counsel’s strategy, we cannot find that the choice the attorney made not to call a witness in the trial is a choice that no competent attorney would have made. 55 53 See, e.g., In re D.T., 593 S.W.3d 437 , 439-40 (Tex. App.—Texarkana 2019, pet. granted) (concluding parents who retain counsel cannot raise an ineffective assistance challenge to the termination order, while citing cases from other courts of appeals that held the same); but see In re E.R.W., 528 S.W.3d 251, 261 (Tex. App.— Houston [14th Dist.] 2017, no pet.) (concluding the right to effective

2020Generally, in a case in which an ineffective assistance claim is made, “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 presumption that counsel’s conduct was reasonable and professional.” Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.

2026“If counsel’s reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel’s decisions and deny relief on an ineffective assistance claim on direct appeal.” Ortiz v. State, 93 S.W.3d 79, 88–89 (Tex. Crim.

2026“If counsel’s reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel’s decisions and deny relief on an ineffective assistance claim on direct appeal.” Ortiz v. State, 93 S.W.3d 79 , 88–89 (Tex. Crim.

2025In more rare circumstances, a court may address an ineffective assistance claim when the challenged conduct was “so outrageous that no competent attorney would have engaged in it.” Goodspeed, 187 S.W.3d at 392 (internal quotes omitted); see also Rylander, 101 S.W.3d at 111 (noting that “trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.”).

2023In more rare circumstances, a court may address an ineffective assistance claim when the challenged conduct was “so outrageous that no competent attorney would have engaged in it.” Goodspeed, 187 S.W.3d at 392 (internal quotes omitted); see also Rylander, 101 S.W.3d at 111 (noting that “trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective”).

2025See Menefield, 363 S.W.3d at 592 (stating that for an ineffective-assistance claim to succeed, the record must demonstrate both deficient performance by counsel and prejudice suffered by the defendant and that the record must affirmatively demonstrate the claim’s meritorious nature); see also Johnson v. State, 624 S.W.3d 579 , 586 (Tex. Crim.

2021Direct appeal is usually inadequate for raising an ineffective-assistance claim because the record generally does not show counsel’s reasons for any alleged deficient performance. 4 See Menefield v. State, 363 S.W.3d 591 , 592–93 (Tex. Crim.

2017“If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been grounded in legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal.” Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim.

2016“If counsel’s reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been grounded in legitimate trial strategy, we will defer to counsel’s decisions and deny relief on an ineffective assistance claim.” Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim.

2024Under this presumption, an ineffective assistance claim is a high burden to overcome via direct appeal “because the record is generally undeveloped.” Goodspeed, 187 S.W.3d at 392 ; Jackson v. State, 877 S.W.2d 768, 772 (Tex. Crim.

2021Jackson, 877 S.W.2d at 772 . “[A] reviewing court on direct appeal will rarely be able to fairly evaluate the merits of an ineffective-assistance claim because the record on direct appeal is usually undeveloped and inadequately reflective of the reasons for defense counsel’s actions at trial.” Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim.

2021App. 1973) (op. on reh’g). “[I]f counsel’s reasons for his 12 conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel’s decisions and deny relief on an ineffective assistance claim on direct appeal.” Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim.

2018Calderon also argues that had his counsel learned of Calderon’s criminal history, counsel would not have attempted to introduce favorable character evidence or may have determined that Calderon should plead guilty. “‘If counsel’s reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel’s decisions and deny relief on an ineffective assistance claim on direct appeal.’” Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim.

2026Because the record must demonstrate the merit of an appellant’s ineffective-assistance claim, “[d]irect appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.

2026To constitute deficient performance, “the challenged conduct [must be] so outrageous that no competent attorney would have engaged in it.” Id. (internal quotation marks omitted); see also Harrington v. Richter, 562 U.S. 86, 105 (2011) (“An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest ‘intrusive post-trial inquiry’ threaten the integrity of the very adversary process the right to counsel is meant to serve.”). (1) Motion for new trial O

2019The Texas Court of Criminal Appeals has noted that the record in a direct appeal is often insufficient to present an ineffective assistance claim, either because “[t]he very ineffectiveness claimed . . . prevent[ed] the record from containing the information necessary to substantiate such a claim” or because the trial court record “does not reflect counsel’s reasons for doing or failing to do actions of which the defendant complains.” Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim.

2015As the Court stated in Ex parte Torres, “[i]n most instances, the record on direct appeal is inadequate to develop an ineffective assistance claim.” 943 S.W.2d 469, 475 (Tex. Crim.

2017Rather, to prevail on an ineffective assistance claim based on counsel’s failure to file a motion to suppress, “an appellant must show by a preponderance of the evidence that the result of the proceeding would have been different—i.e., that the motion to suppress would have been granted and that the remaining evidence would have been insufficient to support his conviction.” Id. (citing Jackson v. State, 973 S.W.2d 954 , 956–57 (Tex. Crim.

2014To satisfy the Strickland test and prevail on an ineffective assistance claim premised on counsel’s failure to file a motion to suppress, “an appellant must show by a preponderance of the evidence that the motion to suppress would have been granted and that the remaining evidence would have been insufficient to support his conviction.” Wert, 383 S.W.3d at 753 (citing Jackson v. State, 973 S.W.2d 954, 956-57 (Tex. Crim.

2025As the Texas Court of Criminal Appeals has noted, however, this poses a “difficult hurdle to overcome,” Lopez, 343 S.W.3d at 143 , and, a “reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim.” Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim.

2025To establish an ineffective assistance claim, the defendant must first demonstrate, “by a preponderance of the evidence, that trial counsel’s performance fell below an objective standard of reasonableness under the prevailing professional norms.” Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim.

2011App. 1999). 6 Thompson, 9 S.W.3d at 813 . 7 See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065 . 3 Review of counsel‘s representation is highly deferential, and the reviewing court indulges a strong presumption that counsel‘s conduct fell within a wide range of reasonable representation.8 A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. 9 ―In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel‘s actions.‖10 To overcome the presumption

2011App. 1999). 6 Thompson, 9 S.W.3d at 813 . 7 See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065 . 3 Review of counsel‘s representation is highly deferential, and the reviewing court indulges a strong presumption that counsel‘s conduct fell within a wide range of reasonable representation.8 A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. 9 ―In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel‘s actions.‖10 To overcome the presumption

2022As a threshold matter, “a reviewing court on direct appeal will rarely be able to fairly evaluate the merits of an ineffective-assistance claim because the record on direct appeal is usually undeveloped and inadequately 6 The undisputed and stipulated record reflects that Jones was 16 at the time of the alleged offense and 26 at the time of the hearing to transfer based upon the complaining witness’ outcry to his mother not made until well after Jones’ eighteenth birthday. –15– reflective of the reasons for defense counsel’s actions at trial.” Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim.

2021Jackson, 877 S.W.2d at 772 . “[A] reviewing court on direct appeal will rarely be able to fairly evaluate the merits of an ineffective-assistance claim because the record on direct appeal is usually undeveloped and inadequately reflective of the reasons for defense counsel’s actions at trial.” Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim.

2021“It is a rare case in which the trial record will by itself be sufficient to demonstrate an ineffective-assistance claim.” Nava v. State, 415 S.W.3d 289, 308 (Tex. Crim.

2021“It is a rare case in which the trial record will by itself be sufficient to demonstrate an ineffective-assistance claim.” Nava v. State, 415 S.W.3d 289, 308 (Tex. Crim.

2022Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim.

2021Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim.

2022In parental-rights termination cases, Texas courts follow the test established in Strickland v. Washington, 466 U.S. 668, 687 (1984) to measure a parent’s allegation that the parent received constitutionally ineffective assistance of counsel. 19 To prove an ineffective assistance claim, the party asserting the claim must establish that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced the defense. 20 Under Strickland, the parent must “successfully show both prongs of the inquiry.” 21 The parent who is claiming ineffective assistance has the burden of proof on

2022In parental-rights termination cases, Texas courts follow the test established in Strickland v. Washington, 466 U.S. 668, 687 (1984) to measure a parent’s allegation that the parent received constitutionally ineffective assistance of counsel. 19 To prove an ineffective assistance claim, the party asserting the claim must establish that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced the defense. 20 Under Strickland, the parent must “successfully show both prongs of the inquiry.” 21 The parent who is claiming ineffective assistance has the burden of proof on

2025As the Texas Court of Criminal Appeals has noted, however, this poses a “difficult hurdle to overcome,” Lopez, 343 S.W.3d at 143 , and, a “reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim.” Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim.

2023As the Texas Court of Criminal Appeals has noted, however, this poses a “difficult hurdle to overcome,” Lopez, 343 S.W.3d at 143 , and, a “reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim.” Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim.

2016See id.; see also Andrews, 159 S.W.3d at 101 (failure to make required showing of sufficient prejudice defeats ineffective assistance claim). 7 Gallamore’s failure to make the required showing of sufficient prejudice defeats an ineffective assistance claim.

2015We view the conduct in its context at the time, and apply a “strong presumption” that counsel’s conduct “falls within a wide range of reasonable professional assistance.” Id. “[I]n almost all cases,” direct appeal is an inadequate vehicle for 2 raising an ineffective-assistance claim because the record is generally underdeveloped.

2023App. 2003) 16 (noting that “the record is silent as to why appellant’s trial counsel took or failed to take the actions,” that “trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective,” and concluding that appellant failed to establish ineffective assistance); Robinson, 16 S.W.3d at 813 n.7 (“[I]n many cases where an appellant does not litigate the ineffective assistance claim before the trial court, the proper procedure will be for the appellate court to overrule an appellant’s Sixth Amendment claim without prejudice to appellant

2016With respect to the inadequacy of a direct appeal for raising such a claim, the Supreme Court observed in Trevino that the “structure and design of the Texas system in actual operation” makes it “‘virtually impossible’ for an ineffective assistance claim to be presented on direct review.” Id. at 1915 (quoting Robinson v. State, 16 S.W.3d 808, 810 (Tex.Crim.App.2000)).

2020See Strickland, 466 U.S. at 688, 692; Hernandez v. State, 726 S.W.2d 53, 54-57 (Tex. Crim.

2003Strickland v. Washington, 466 U.S. 668, 690 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53 ( Tex.Cr.App. 1986). 2 Although counsel suggests other potential basis for consideration of an ineffective assistance claim, we agree, as she concedes, these potential grounds are not sufficiently founded in the record to merit consideration on direct appeal. 3 The adequacy of defense counsel’s assistance is based upon the totality of the representation rather than by isolated acts or omissions of trial counsel.

2021App. 2002) (en banc) (“If counsel’s reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel’s decisions and deny relief on an ineffective assistance claim on direct appeal.”). 9 Lopez, 343 S.W.3d at 143 (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim.

2015See Bone, 77 S.W.3d at 833 (absent specific explanations for counsel’s decisions, record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim); see also Garcia, 57 S.W.3d at 440 (in the absence of evidence of counsel’s reasons for the challenged conduct, the court “commonly will assume a strategic motivation if any can possibly be imagined,” and will not find deficient performance unless the challenged conduct was “so outrageous that no competent attorney would have engaged in it”).

2023As set out above, at the time of trial, no controlling Texas authority provided that criminal mischief is a result-of-conduct offense as suggested by Demirs. “[B]asing an ineffective assistance claim on caselaw that is unsettled at the time of counsel’s actions ‘would be to engage in the kind of hindsight examination of effectiveness of counsel the Supreme Court 13 expressly disavowed in Strickland.’” Vaughn, 931 S.W.2d at 567 (quoting Ex parte Davis, 866 S.W.2d 234, 241 (Tex. Crim.

2016Further, “basing an ineffective assistance claim on [case law] that is unsettled at the time of counsel’s actions ‘would be to engage in the kind of hindsight examination of effectiveness of counsel the Supreme Court expressly disavowed in Strickland. . . .’” Vaughn v. State, 931 S.W.2d 564, 567 (Tex. Crim.

2019Appellant believes this exception applies because “the structure and design of the Texas system . . . make it ‘virtually impossible’ for an ineffective assistance claim to be presented on direct review.” See Trevino v. Thaler, 569 U.S. 413, 417 (2013).

2019Appellant believes this exception applies because “the structure and design of the Texas system . . . make it ‘virtually impossible’ for an ineffective assistance claim to be presented on direct review.” See Trevino v. Thaler, 569 U.S. 413, 417 (2013).

2011See Freeman, 125 S.W.3d at 511 .

2007See Freeman v. State, 125 S.W.3d 505, 506-07 (Tex.Crim.App.2003); see also Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App.2002) (“If counsel’s reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel’s decisions and deny relief *432 on an ineffective assistance claim on direct appeal.”).

2022Evid. 901(a), (b)(1), and on this record, Phillips’s trial attorney’s failure to object cannot support the ineffective assistance claim.9 See Prine, 537 S.W.3d at 117– 18.

2020When reviewing an ineffective assistance claim, we indulge a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance and that counsel’s conduct constituted sound trial strategy. 1 Each indictment included a habitual offender enhancement paragraph to which Pieper pleaded true. -2- 04-19-00377-CR & 04-19-00378-CR Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim.

2015See Strickland, 466 U.S. at 687 ; Cannon v. State, 252 S.W.3d 342, 348-49 (Tex.Crim.App. 2008) (holding that a defendant, in order to obtain a reversal of his conviction on the grounds of ineffective assistance of counsel, must demonstrate both deficient performance and prejudice); cf. Murphy v. State, 112 S.W.3d 592, 601 (Tex.Crim.App. 2003) (holding that if counsel’s reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, the Court would defer to counsel’s decision and deny relief on an ineffective-

2013“An ineffective-assistance claim may be brought for the first time on appeal.” Cannon v. State, 252 S.W.3d 342 , 347 n.6 (Tex. Crim.

2017Strickland v. Washington, 466 U.S. 668, 694 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) (noting that the test for prejudice requires a showing that there is a reasonable probability, but for counsel’s unprofessional errors, the result of the proceeding would.have been different); see also Martinez, 566 U.S. at 14, 132 S.Ct. 1309 (holding that a prisoner may establish cause for a default for an ineffective assistance claim when the prisoner can establish that appointed counsel on the initial-review collateral proceeding was ineffective under the standards of Strickland v. Washington.).

2016The Supreme Court held that, where a state procedural framework makes it highly unlikely that a defendant will have a meaningful opportunity to raise an ineffective-assistance claim on direct appeal, a procedural default “ ‘will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.’ ” Id. (quoting Martinez, 132 S.Ct. at 1320 ).