ineffective assistance of counsel claim in Texas

2025To successfully assert an ineffective assistance of counsel claim, a parent must satisfy the two-prong test articulated in Strickland. 466 U.S. 668 at 687 ; In re D.T., 625 S.W.3d 62 , 73 (Tex. 2021).

2025Id. -4- Franklin did not raise an ineffective assistance of counsel claim in the trial court.

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 ).

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.

2015The Strickland Standard on Direct Appeal 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, 57 (Tex. Crim.App. 1986) (adopting Strickland as the applicable standard under Texas 48 Constitution).

2025Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).

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 ).

2019See Menefield v. State, 363 S.W.3d 591 , 592-93 (Tex. Crim. App. 2012) (stating that direct appeal is usually inadequate for raising an ineffective-assistance-of-counsel claim); Imade v. State, No. 14-09-00886-CR, 2011 WL 3064759 , at *1 n.2 (Tex. App.—Houston [14th Dist.] July 26, 2011, pet. dism’d, untimely filed) (mem. op.) (not designated for publication) (stating that appellant “may not manipulate the right to counsel so as to obstruct the orderly procedure in the court or interfere with the fair administration of justice and must, in some circumstances, yield to the general interest of p

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 .

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.

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 .

2005See generally Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) (generally requiring a defendant to prove deficient attorney performance and prejudice in establishing an ineffective assistance of counsel claim); but see Hernandez v. State, 988 S.W.2d 770, 771 (Tex.Cr.App.1999) (questioning whether Strickland even applies to attorney performance at the punishment phase of a noncapital sentencing proceeding).

2005See generally Strickland v. Washington , 466 U.S. 668 (1984) (generally requiring a defendant to prove deficient attorney performance and prejudice in establishing an ineffective assistance of counsel claim); but see Hernandez v. State , 988 S.W.2d 770, 771 (Tex.Cr.App. 1999) (questioning whether Strickland even applies to attorney performance at the punishment phase of a noncapital sentencing proceeding).

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. App. 2011) (holding a record devoid of counsel’s reasoning behind particular decision––the failure to object to evidence––generally will not show deficient performance).

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.

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.

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).

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.

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. App. 1994) (Barid, J., concurring) (“As a general rule, one should not raise an issue of ineffective assistance of counsel on direct appeal.”).

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 have probably been different. 30 When making an ineffective assistance of counsel claim, the defendant bears the burden to develop the facts needed to show the attorney who represented the defendant in his trial was ineffective based on the standards identified by the United States Supreme Court in Strickland.31 Generally, to prove a claim of ine

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).

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).

2024Strickland, 466 U.S. at 687 ; 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 .

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 (1984).

2011To successfully assert an ineffective assistance of counsel claim on appeal in a termination ease, 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 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).

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).

2025Smith v. State, 286 S.W.3d 333, 341 (Tex. Crim. App. 2009).

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.

2025Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (citing Strickland, 466 U.S. at 695 ).

2024Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim.

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. App. 2002).

2019Although 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.

2011See Ex parte White , 160 S.W.3d 46, 52 (Tex. Crim. App. 2004) (“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.”); King v. State , 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (declining to find counsel ineffective for failing to call witnesses during punishment where appellant did not demonstrate that the witnesses were available or how he would benefit from their testimony); Rangel v. State , 972 S.W.3d 827 ,

2011App. 2004) (“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.”) (citing King v. State , 649 S.W.2d 42, 44 (Tex. Crim.

2013See, e.g., id. (noting ineffective assistance of counsel claims are more appropriately urged in hearing on application for writ of habeas corpus); Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim.

2005See Ex parte Torres, 943 S.W.2d 469, 475 (Tex.Crim.App.1997); see also Mallett v. State, 65 S.W.3d 59, 70 (Tex.Crim.App.2001) (Meyers, J., dissenting) (prior rejection of an ineffective assistance of counsel claim on direct appeal will not bar relitigation of the claim when an applicant offers evidence not contained in the direct appeal record).

2006See Menchaca, 854 S.W.2d at 130-32 ; but see Vaughn v. State, 931 S.W.2d 564, 566-67 (Tex.Cr.App.1996) (basing an ineffective assistance of counsel 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). 14 .

2006See Menchaca , 854 S.W.2d at 130-32 ; but see Vaughn v. State , 931 S.W.2d 564, 566-67 (Tex.Cr.App. 1996) (basing an ineffective assistance of counsel 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 "). 14.

2018Without more, we must defer 120 (...continued) representation. 121 Garza, 213 S.W.3d at 348 . 122 Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.

2014Strickland v. Washington, 466 U.S. 668, 687 (1984); Garza v. State, 213 S.W.3d 338, 347-48 (Tex. Crim.

2021Freeman v. State, 125 S.W.3d 505 , 506–07 (Tex. Crim.

2014As the Court of Criminal Appeals has repeatedly acknowledged, “Generally, post-conviction writ proceedings are a better forum for pursuing relief on an ineffective assistance of counsel claim.” Freeman v. State, 125 S.W.3d 505 , 506–07 (Tex. Crim.