ineffective assistance of counsel claim in Texas

2025To prevail on an ineffective assistance of counsel claim, an appellant must satisfy the two-element test set out in Strickland v. Washington, 466 U.S. 668, 687 (1984).

2025A. Standard of Review and Applicable Law We review an ineffective assistance of counsel claim under the well-established standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).

2015The Strickland Standard on Direct Appeal 5 Traditionally, when confronted with an ineffective assistance of counsel claim from either stage of a trial, the Court will apply the two-pronged analysis set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53 (Tex. Crim.

2015To prevail on an ineffective assistance of counsel claim, an appellant must meet the two- pronged test set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by the Texas ‐4‐ Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53 (Tex. Crim.

2024On direct appeal of an ineffective assistance of counsel claim, there is “[a] substantial risk of failure” because “[i]n the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.” Id. at 813–14.

2023See Thompson, 9 S.W.3d at 814 n.6.; Menefield, 363 S.W.3d at 592–93 (explaining that direct appeal is usually an inadequate vehicle for raising an ineffective assistance of counsel claim) (citing Goodspeed, 187 S.W.3d at 392 ).

2025Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim.

2024Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim.

2024When a party raises an ineffective assistance of counsel claim for the first time on direct appeal, “the defendant must show that ‘under prevailing professional norms,’ Strickland, 466 U.S. at 688 , 104 S.Ct. 2052 , no competent attorney would do what trial counsel did or no competent attorney would fail to do what trial counsel failed to do, Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim.

2024When a party raises an ineffective assistance of counsel claim for the first time on direct appeal, “the defendant must show that ‘under prevailing professional norms,’ Strickland, 466 U.S. at 688 , 104 S.Ct. 2052 , no competent attorney would do what trial counsel did or no competent attorney would fail to do what trial counsel failed to do, Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim.

2023See Thompson, 9 S.W.3d at 814 n.6.; Menefield, 363 S.W.3d at 592–93 (explaining that direct appeal is usually an inadequate vehicle for raising an ineffective assistance of counsel claim) (citing Goodspeed, 187 S.W.3d at 392 ).

2018See Menefield, 363 S.W.3d at 592–93 (explaining that direct appeal is usually an inadequate vehicle for raising an ineffective-assistance-of-counsel claim).

2026Under this presumption, an ineffective assistance of counsel claim via direct appeal “is usually an inadequate vehicle” “because the record is generally undeveloped.” Goodspeed, 187 S.W.3d at 392 .

2025Under this presumption, an ineffective assistance of counsel claim is a high hill to traverse via direct appeal “because the record is generally undeveloped.” Goodspeed, 187 S.W.3d at 392 .

2024To successfully assert an ineffective assistance of counsel claim, an appellant must show that: (1) trial counsel’s performance was “deficient because it fell below an objective standard of reasonableness;” and (2) “a probability sufficient to undermine confidence in the outcome existed that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Rylander v. State, 101 S.W.3d 107 , 109–10 (Tex. Crim.

2023And because the record on direct appeal is rarely sufficient to decide an ineffective-assistance- of-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 .

2024In the usual case in which an ineffective assistance of counsel claim is made, be it a claim under Cronic or Strickland, it is likely that “the record on direct appeal will not be sufficient to 10 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.” See Cannon, 252 S.W.3d at 349–50 (citing Bone, 77 S.W.3d at 833 ).

2019App. 2002) (“The reasonableness of counsel’s choices often involves facts that do not appear in the appellate record,” and thus a writ of habeas corpus is the more appropriate vehicle to raise an ineffective assistance of counsel claim.); see also Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim.

2018App. 2015) (citations omitted). 12 and that the deficiency prejudiced the defense.29 An ineffective-assistance-of- counsel claim must be “firmly founded in the record,” and “the record must affirmatively demonstrate” the meritorious nature of the claim.30 Direct appeal is usually an inadequate vehicle for raising an ineffective-assistance-of-counsel claim because the record is generally undeveloped.31 In evaluating the effectiveness of counsel under the deficient-performance prong, we look to the totality of the representation and the particular circumstances of each case. 32 The issue is whet

2016These cases recognize, too, that an ineffective assistance of counsel claim “must be firmly founded in the record.” Id. at 813 .

2025“To obtain relief on an ineffective assistance of counsel claim based on an uncalled witness, the applicant must show that [the witness] had been available to testify and that his testimony would have been of some benefit to the defense.” Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim.

2024“To obtain relief on an ineffective assistance of counsel claim based on an uncalled witness, the applicant must show that [the witness] had been available to 4 testify and that his testimony would have been of some benefit to the defense.” Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim.

2025See Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d at 813–14; see, e.g., Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.

2021Ineffective Assistance of Counsel To prevail on an ineffective assistance of counsel claim, an “[a]ppellant must show that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced the defense.” Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim.

2026“Thus, an ineffective assistance of counsel claim requires a showing of a deficient performance by counsel so serious as to deny the defendant a fair and reliable trial.” In re J.O.A., 283 S.W.3d 336, 342 (Tex. 2009).

2020“Thus, an ineffective assistance of counsel claim requires a showing of a deficient performance by counsel so serious as to deny the defendant a fair and reliable trial.” In re J.O.A., 283 S.W.3d 336, 342 (Tex. 2009).

2010To prevail on an ineffective assistance of counsel claim, a defendant must show by a "preponderance of the evidence that his counsel's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different." Salinas v. State , 163 S.W.3d 734, 740 (Tex. Crim.

2010To prevail on an ineffective assistance of counsel claim, a defendant must show by a “preponderance of the evidence that his counsel’s representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different.” Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim.

2019Following the standard set forth in Strickland v. Washington, to establish an ineffective assistance of counsel claim, William was required to prove, by a preponderance of the evidence, that: (1) “‘counsel’s performance was deficient;’” and (2) “‘that the deficient performance prejudiced the defense.’” In re M.S., 115 S.W.3d 534, 545 (Tex. 2003) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).

2011To successfully assert an ineffective assistance of counsel claim on appeal in a termination case, the appellant must show (1) that counsel failed to perform in a reasonably effective manner and (2) that "the deficient performance prejudiced the defense, which `requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" In re H.R.M., 209 S.W.3d 105, 111 (Tex.2006) (quoting M.S., 115 S.W.3d at 545 ); see Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052, 2064 , 80 L.Ed.2d 674 (1984).

2011Id. 8 gathering the facts necessary to substantiate an ineffective assistance of counsel claim).

2009Citing the Robinson court’s statement that “a defendant could not, by inaction at trial, waive the right to make an ineffective assistance of counsel claim on appeal,” id. at 810 , appellant argues that his claims are not procedurally defaulted and that Robinson “is controlling on the issue of procedural default.” He also suggests that the above language from Robinson impliedly overrules Landers v. State, 110 S.W.3d 617 (Tex.App.Houston [14th Dist.] 2003, pet. ref'd), cited by the State, which appellant argues is a misapplication of the procedural default rule.

2017Vasquez v. State, 830 S.W.2d 948, 949 (Tex.Crim.App. 1992).

2016Smith v. State, 286 S.W.3d 333, 340 (Tex.Crim.App. 2009); Vasquez v. State, 830 S.W.2d 948, 949 (Tex.Crim.App. 1992).

2024Under this presumption, an ineffective assistance of counsel claim is a high hill to traverse 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.

2019To establish a claim of ineffective assistance of counsel, the defendant must show that the performance of his attorney fell below an objective standard of reasonableness, and that, but for counsel’s alleged error, the outcome of the proceedings would probably have been different. 23 When making an ineffective assistance of counsel claim, the defendant bears the burden of developing the facts necessary to meet the burden to show the defendant received ineffective assistance under the standards identified in Strickland. 24 Generally, to prove a claim of ineffective assistance, the defendant mus

2024Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); State v. Morales, 253 S.W.3d 686, 696 (Tex. Crim.

2014See State v. Morales, 253 S.W.3d 686, 697 (Tex.Crim.App.2008) (addressing an ineffective-assistance-of-counsel claim and stating "the right to trial by impartial jury, like any other right, is subject to waiver (or even forfeiture) by the defendant in the interest of overall trial strategy.”). 27 .

2024Donnelly v. K.T., No. 02-22-00183-CV, 2023 WL 4243341 , at *8 (Tex. 15 App.—Fort Worth June 29, 2023, no pet.) (mem. op.) (citing McCoy v. Texas Instruments, Inc., 183 S.W.3d 548, 553 (Tex. App.—Dallas 2006, no pet.) (stating that doctrine of ineffective assistance of counsel does not extend to civil cases)).

2023In re P.S., 505 S.W.3d 106, 110 (Tex. App.—Fort Worth 2016, no pet.) (“The doctrine . . . does not extend to civil cases in general.”); Maki, 2013 WL 4121229 , at *6 (declining to reverse protective order based on allegations of ineffective assistance of counsel); see, e.g., McCoy v. Tex. Instruments, Inc., 183 S.W.3d 548, 553 (Tex. App.—Dallas 2006, no pet.) (stating doctrine of ineffective assistance of counsel does not extend to civil cases).

2025Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim.

2024Strickland v. Washington, 466 U.S. 668, 687 (1984); Perez v. State, 310 S.W.3d 890 , 892–93 (Tex. Crim.

2025Smith v. State, 286 S.W.3d 333, 341 (Tex. Crim.

2013See Smith, 286 S.W.3d at 345 (holding court did not abuse its discretion in failing to hold hearing on ineffective assistance of counsel claim when appellant failed to raise facts to establish he could prevail under the Strickland prejudice prong). 1 The State argues Mata-Guevara waived his right to raise this ineffective assistance of counsel claim on appeal because he failed to request a hearing after the trial court advised Mata-Guevara to raise it at a later time.

2012Generally, the trial record will not be sufficient to establish an ineffective assistance of counsel claim.2 Thompson, 9 S.W.3d at 813-14 ; Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd).

2002App. 2000); see also Kemp v. State , 892 S.W.2d 112, 115 (Tex. App. C Houston [1st Dist.] 1994, pet. ref’d) (holding that generally, the trial court record is inadequate to properly evaluate ineffective assistance of counsel claim); Beck v. State , 976 S.W.2d 265, 266 (Tex. App. C Amarillo 1998, pet. ref’d) (holding that there was an inadequate record for an ineffective assistance of counsel claim).

2011See In re B.G., 317 S.W.3d 250 (Tex.2010).

2011See In re B.G., 317 S.W.3d 250, 253-54 (Tex.2010).

2025See Reagins v. Walker, 524 S.W.3d 757, 764 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (recognizing the doctrine of ineffective assistance of counsel does not extend to civil cases in general); In re P.S., 505 S.W.3d 106, 110 (Tex. App.—Fort Worth 2016, no pet.) (same); Culver v. Culver, 360 S.W.3d 526, 535 (Tex. App.—Texarkana 2011, no pet.) (same); Koda v. Rossi, No. 11-15-00150-CV, 2017 WL 3710992 , at *1 (Tex. App.—Eastland Aug. 25, 2017, no pet.) (mem. op.) (same); Baca v. Baca, No. 11-15-00147-CV, 9 2016 WL 4574473 , at *1 (Tex. App.—Eastland Aug. 25, 2016, no pet.) (mem. op.) (same).

2022To the extent that Mary’s brief can be understood to mean that counsel should have prosecuted her private suit to terminate parental rights earlier, “[t]he doctrine of ineffective assistance of counsel does not apply in civil cases where there is no constitutional or statutory right to counsel.” In re A.B.B., 482 S.W.3d 135, 140 (Tex. App.—El Paso 2015, pet. dism’d, w.o.j.) (citing In re C.J., No. 04-14-00663-CV, 2015 WL 1089660 , at *2 (Tex. App.—San Antonio Mar. 11, 2015, no pet.) (mem. op.) (citing Culver v. Culver, 360 S.W.3d 526, 535 (Tex. App.—Texarkana 2011, no pet.))).

2021If trial counsel did not have that opportunity, we should not conclude that counsel performed deficiently unless the challenged conduct was “so outrageous that no competent attorney would have engaged in it.” Nava, 415 S.W.3d at 308 . 9 Although an ineffective-assistance-of-counsel claim may be raised on direct appeal, “[a] petition for writ of habeas corpus usually is the appropriate vehicle to investigate ineffective-assistance claims.” Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim.

2018Ineffective Assistance of Counsel To establish ineffective assistance of counsel, an appellant must show by a preponderance of the evidence that his counsel’s representation was deficient and that the deficiency prejudiced the defense.2 An ineffective-assistance claim must be “firmly founded in the record,” and “the record must affirmatively demonstrate” the meritorious nature of the claim.3 Direct appeal is usually an inadequate vehicle for raising an ineffective-assistance-of-counsel claim because the record is generally undeveloped.4 In evaluating the effectiveness of counsel under the defi

2023“To base an ineffective assistance of counsel claim on law that is unsettled as of the time of the attorney’s performance would indulge in the kind of retrospective evaluation that Strickland forbids.” Id. (citing Vaughn v. State, 931 S.W.2d 564, 567 (Tex. Crim.

2012And as the Court of Criminal Appeals has stated, "An ineffective assistance of counsel claim cannot be based on an alleged error of counsel when the caselaw evaluating counsel’s actions and decisions in that instance was nonexistent or not definitive.” Vaughn v. State, 931 S.W.2d 564, 568 (Tex.Crim.App.1996) (per curiam). 6 .

2026App. 2013) (quoting Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim.

2024App. 2013) (“In order to succeed with an ineffective-assistance-of-counsel claim based on counsel’s failure to object, one ‘must show that the trial judge would have committed error in overruling such objection.’” (quoting Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim.