AFFIRM; and Opinion Filed October 16, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00707-CR
JOHN DAVID SHOCKLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F11-51734-T
MEMORANDUM OPINION
Before Justices Moseley, Lang, and Richter 1
Opinion by Justice Richter
A jury convicted John David Shockley of aggravated robbery, and the trial court assessed
punishment, enhanced by prior felony convictions, at thirty-five years in prison and ordered
appellant to pay $264 in court costs. The judgment includes a deadly weapon finding (a
firearm). In two points of error, appellant complains he received ineffective assistance of
counsel and the evidence is insufficient to support the trial court’s assessment of court costs. We
affirm the trial court’s judgment. The background and facts of this case are well-known to the
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The Honorable Martin E. Richter, Retired Justice, sitting by assignment.
parties; so we do not recite them here in detail. We issue this memorandum opinion because the
law to be applied in the case is well settled. TEX. R. APP. P. 47.4.
Ineffective Assistance of Counsel
Appellant contends in his first point of error that he was denied the effective assistance of
counsel. He specifically challenges trial counsel’s decision not to have him testify during the
guilt-innocence phase of trial. Appellant does not deny he committed the robbery. But he claims
he used a toy gun in the commission of the robbery and therefore, the only issue at trial was
whether he used a deadly weapon. He argues that although the victim conceded on cross-
examination that the gun appellant displayed during the robbery might have been a fake, his trial
counsel should have “understood that he needed to present affirmative evidence showing that the
gun used by Appellant was nothing more than a toy.” He contends the decision for him not to
testify deprived him of his only defense and showed that counsel “was not prepared and did not
understand the law applicable to the kind of evidence deemed sufficient to prove that the gun
used by an accused during the commission of an offense constituted a deadly weapon.”
To prevail on an ineffective assistance claim, appellant must prove by a preponderance of
the evidence that (1) counsel’s performance fell below an objective standard of reasonableness
under prevailing professional norms; and (2) a reasonable probability exists that, but for
counsel’s errors, the result would have been different. Strickland v. Washington, 466 U.S. 668,
687–88 (1984); Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). A defendant’s
failure to satisfy one prong negates the need to consider the other prong. Strickland, 466 U.S. at
697; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). In determining whether
appellant met his burden, we judge counsel’s performance not by isolating one portion of
counsel’s representation, but by considering the totality of the representation and the particular
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circumstances of the case. Ex parte Lane, 303 S.W.3d 702, 707 (Tex. Crim. App. 2009);
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Our review is highly deferential,
and we presume counsel’s conduct fell within the wide range of reasonable professional
assistance and counsel’s actions were motivated by sound trial strategy. Strickland, 466 U.S. at
689–90; Ex parte Lane, 303 S.W.3d at 707.
Ineffective assistance of counsel claims “must ‘be firmly founded in the record,’” with
the record itself affirmatively demonstrating the alleged deficient performance. Bone v. State, 77
S.W.3d 828, 834 (Tex. Crim. App. 2002) (quoting Thompson, 9 S.W.3d at 813–14). For that
reason, direct 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. App. 2005).
Appellant argues this case is one of those cases in which trial counsel’s ineffectiveness is
apparent from the face of the record such that the issue can be resolved on direct appeal. He
points to his testimony in the punishment phase of trial during which his trial counsel asked him
questions about their trial strategy and the decision for him not to testify:
Q. Now, with regard to the cases in which you’ve been charged, you have never
denied your involvement in those cases; is that right?
A. No, sir.
Q. The only dispute that you have ever had is with the fact that it was a plastic or
toy gun that was used; is that right?
A. Yes, sir.
Q. And you have written numerous letters to various people trying to get them to
understand that it was a toy or fake gun; is that right?
A. For the past 16 months I have written to the Judge admitting to the exact
nature of my wrongs and been willing to take a lie detector to prove that I carried
a toy gun in the commission of the robberies.
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Q. In fact our plan in trial was for you to take the stand and to say just that; is that
right?
A. Yes, sir.
Q. But when the State’s case became as weak as it was, then it appeared that even
the better strategy was for you not to testify at all; is that correct?
A. That’s correct.
Q. Based on what we perceived to be a very clear situation of the State not
having proven that it was a real gun; is that right?
A. Yes, sir.
Appellant maintains that without his testimony, the only evidence before the jury on the
weapon used was the victim’s testimony that the weapon looked like a semi-automatic handgun
and that the victim thought it was real. Appellant claims his testimony on the issue was the
“only chance” he had of being found guilty of the lesser included offense of robbery.
The State agrees the record is adequate for this Court to resolve appellant’s ineffective
assistance of counsel claim on direct appeal because appellant’s counsel explained his actions on
the record. The State contends, however, that appellant’s claim should be rejected because he
did not meet his burden to show deficient performance or sufficient prejudice.
We disagree that the record before us adequately reflects counsel’s strategy or reasoning
related to the decision for appellant not to testify at trial. The above exchange reveals that the
“plan” was for appellant to testify and the plan changed when they thought the State’s case had
become weak. But the record is silent regarding counsel’s considerations for why the decision
for appellant not to testify was the “better strategy.” Nor is there anything in the record where
counsel explains the motives behind his actions. Rylander v. State, 101 S.W.3d 107, 110–11
(Tex. Crim. App. 2003). Where the record is silent regarding counsel’s trial strategy or tactics,
we will not speculate as to the basis of counsel’s decision. Id. at 111. A basic corollary from the
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proposition that a silent record will not overcome the strong presumption of counsel’s reasonable
assistance is that counsel should be given an opportunity to explain any actions or inactions
before being adjudged incompetent. See id. That has not occurred here, and appellant has not
shown that this case is one of those extraordinary situations in which the face of the record
shows counsel’s challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). We therefore
conclude appellant failed to demonstrate under the first Strickland prong that counsel’s
performance was deficient. See Strickland, 466 U.S. at 687–88. We resolve appellant’s first
point of error against him.
Court Costs
In his second point of error, appellant requests we reform the trial court’s judgment to
delete the requirement that he pay $264 in court costs because the clerk’s record does not contain
a cost bill. He argues that without a written bill of costs, the evidence is insufficient to support
the trial court’s order.
Court costs are legislatively-mandated obligations resulting from a conviction. See TEX.
GOV’T CODE ANN. §§ 102.021, 102.041 (West Supp. 2012); TEX. CODE CRIM. PROC. ANN. art.
102.005 (West 2006); Armstrong v. State, 320 S.W.3d 479, 481 (Tex. App.—Amarillo 2010),
rev’d on other grounds, 340 S.W.3d 759 (Tex. Crim. App. 2011); cf. TEX. CODE CRIM. PROC.
ANN. art. 42.16 (West 2006) (stating trial court’s judgment “shall also adjudge the costs against
the defendant, and order the collection thereof”). Court costs are compensatory in nature; that is,
“they are ‘a nonpunitive recoupment of the costs of judicial resources expended in connection
with the trial of the case.’” Armstrong, 340 S.W.3d at 767 (quoting Weir v. State, 278 S.W.3d
364, 366 (Tex. Crim. App. 2009)).
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If a criminal action is appealed, “an officer of the court shall certify and sign a bill of
costs stating the costs that have accrued and send the bill of costs to the court to which the action
or proceeding is . . . appealed.” TEX. CODE CRIM. PROC. ANN. art. 103.006 (West 2006). Costs
may not be collected from the person charged with the costs until a written bill, containing the
items of cost, is produced and “signed by the officer who charged the cost or the officer who is
entitled to receive payment for the cost.” Id. art. 103.001.
The clerk’s record in this case did not contain a copy of the bill of costs. In light of this
and appellant’s specific complaint on appeal, we ordered the Dallas County District Clerk to
prepare and file a supplemental clerk’s record containing a certified bill of costs associated with
this case, and the clerk did so. See TEX. R. APP. P. 34.5(c)(1) (rules of appellate procedure allow
supplementation of clerk’s record if relevant item has been omitted); see also Franklin v. State,
402 S.W.3d 894, 895 (Tex. App.—Dallas 2013, no pet.); Ballinger v. State, 405 S.W.3d 346, 348
(Tex. App.—Texarkana 2013, no pet.) (“[W]hen a trial court’s assessment of costs is challenged
on appeal and no bill of costs is in the record, it is appropriate to supplement the record pursuant
to Rule 34.5(c) because a bill of costs is required by Article 103.006.”). Because the record now
contains a bill of costs supporting the assessment of costs in the trial court’s judgment,
appellant’s complaint that the evidence is insufficient to support the imposition of the costs is
moot. See Franklin, 402 S.W.3d at 895; Coronel v. State, No. 05-12-00493-CR, 2013 WL
3874446, at *4 (Tex. App.—Dallas July 29, 2013, no pet. h.). We resolve appellant’s second
point of error against him.
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Based on our resolution of appellant’s points of error, we affirm the trial court’s
judgment.
/Martin Richter/
MARTIN RICHTER
JUSTICE, ASSIGNED
Do Not Publish
TEX. R. APP. P. 47
120707F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOHN DAVID SHOCKLEY, Appellant On Appeal from the 283rd Judicial District
Court, Dallas County, Texas
No. 05-12-00707-CR V. Trial Court Cause No. F11-51734-T.
Opinion delivered by Justice Richter.
THE STATE OF TEXAS, Appellee Justices Moseley and Lang participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 16th day of October, 2013.
/Martin Richter/
MARTIN RICHTER
JUSTICE, ASSIGNED
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