In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00413-CR
___________________________
LADONNA LYNN WELCH, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 355th District Court
Hood County, Texas
Trial Court No. CR13545
Before Kerr, Pittman, and Bassel, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. INTRODUCTION
After a car wreck in which she struck and killed a motorcyclist, Appellant
LaDonna Lynn Welch pleaded guilty to the offense of intoxication manslaughter, a
second-degree felony. See Tex. Penal Code Ann. § 49.08. A jury assessed Welch’s
punishment at 20 years’ confinement, and the trial court sentenced her accordingly.
In one issue, Welch argues that her conviction should be reversed and her case
remanded for a new punishment hearing because her trial counsel’s performance was
so deficient that she failed to receive effective assistance of counsel. She chronicles
seven specific ways she believes her counsel’s assistance was deficient:
1. He failed to offer evidence to prove that Welch was eligible for community
supervision (probation) because she had no prior felony conviction;
2. He wept in front of the jury because his spouse recently died, and he is
sensitive to death;
3. He failed to object to the prosecutor’s comment on Welch’s failure to testify;
4. He conceded that a vehicle is a deadly weapon;
5. He conveyed confusion over the law in his closing argument;
6. He only called one witness; and
7. He failed to convey the severity of the punishment.
As with most inadequate assistance claims brought by direct appeal, we lack an
appropriate record to resolve Welch’s challenges to her lawyer’s performance.
Further, both Welch’s briefing—which misstates the standard for evaluating
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ineffective-assistance-of-counsel claims occurring during the punishment phase—and
the record we do have fail to demonstrate that actions of Welch’s trial counsel
prejudiced her. Finally, most of the deficiencies catalogued by Welch appear to be
more differences in opinion about the tactical decisions of her trial counsel than a
challenge to his competence. We affirm.
II. BACKGROUND
A. January 31, 2016
In the early afternoon of January 31, 2016, David West was driving his
motorcycle northbound on F.M. 4 in Hood County. His wife was riding her trike
motorcycle alongside him. Welch was driving a Dodge truck in the opposite
direction.
Another motorist was driving northbound on F.M. 4 in front of David when
he saw that the Dodge truck traveling southbound had veered into the northbound
lane. The northbound motorist said that he initially thought the Dodge truck was
trying to pass, but when he realized that the driver was not aware of which lane she
was in, he “hit the ditch . . . to get out of the way.” When he looked over, he saw that
the driver of the Dodge truck was looking down at her lap and not even looking at
the road and that at no point did he see the driver attempt to brake or correct. In his
rearview mirror, he saw the Dodge truck strike the motorcycle, which caused David’s
body to fly through the air over the truck.
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Another motorist driving on F.M. 4 at the time also witnessed the crash. She
stated that the impact sent David “straight up in the air,” making him look “like a rag
doll.” When first responders arrived only minutes after the crash, they “very quickly”
determined that David was deceased.
Welch was indicted and charged with one count of intoxication manslaughter,
one count of manslaughter, and one count of criminally negligent homicide. Each
count included an allegation that Welch used a deadly weapon, her truck, in the
commission of each offense.
B. Trial Proceedings
Welch waived arraignment and, after receiving admonishments from the trial
court, pleaded guilty to the charge of intoxication manslaughter.1 She elected to have
a jury assess her punishment, but before the punishment hearing, Welch filed an
application for felony probation.
1. Witnesses’ Testimony
At the punishment trial, the State called eleven witnesses and Welch called one.
Among the State’s witnesses was a trooper with the Department of Public Safety
(DPS), who testified that he was dispatched to the scene of the crash. The DPS
The admonishments included the following relevant exchange regarding
1
Welch’s trial counsel:
THE COURT: And ma’am, have you been satisfied with [your
trial counsel’s] representation?
DEFENDANT: Yes, Your Honor.
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trooper spoke to Welch at the scene and observed that her breath smelled of alcohol
and that her eyes appeared red and “glassy.” The DPS trooper testified that Welch
stated to him that as she was driving, “she was looking down at her phone, and she
was texting, and when she looked back up, she realized she was on the wrong side of
the road, and she saw the motorcycle rider but was unable to avoid him.” The DPS
trooper said that he administered a voluntary field-sobriety test, which Welch failed,
so he placed her under arrest for DWI. Welch was administered a breathalyzer test
over an hour after the crash, and her results were a blood-alcohol content of .106 and
.098—both over the legal limit.
Another witness testified that after the crash she saw Welch pour liquid out of
beer cans and then throw them out of the truck.
A second DPS trooper also testified. The second trooper stated that he arrived
at the scene of the crash to assist the first DPS trooper by taking inventories on the
vehicles and releasing them to wrecker services. The second DPS trooper was asked
about several of the State’s exhibits, which included a copy of a receipt found in
Welch’s truck for the purchase of two alcoholic beverages approximately eight
minutes prior to the crash. The second DPS trooper testified that he found an open
beer can in the bed of Welch’s truck.
The second DPS trooper was then asked about a domestic disturbance call he
responded to in August 2016—eight months after the crash. He said that when he
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arrived at the scene, he found Welch intoxicated and presenting a danger to herself or
others, so he arrested her for public intoxication.
A community supervision officer with Hood County’s “Adult Probation
Department” testified that a condition of Welch bonding out of jail was the
installation of an ignition-interlock device that would prevent Welch from starting her
vehicle if she had above a .03 blood-alcohol content. The community supervision
officer said that just a few months after the crash, the interlock device reported “a
number of high alcohol -- high BAC alcohol readings.” He spoke to Welch, and
although she admitted to drinking beer, she denied trying to start her vehicle.
However, the community supervision officer was able to confirm “from the pictures
in -- from the interlock device that it was her, in fact, that was trying to start the -- the
vehicle.” He reported Welch’s admission of alcohol consumption and the positive
alcohol reading from the interlock device to the trial court, resulting in the forfeiture
of her bond and her return to jail.
David’s son and brother testified as well. David’s son testified that David’s
death was “really hard,” and David’s brother testified that it was “devastating” and
“shocking.”
The final witness was Welch’s husband, and he was the only witness that
Welch’s counsel called to testify. He provided some background about Welch,
namely that she is from Tennessee; that they work together as pipefitters, which is
what brought them to Texas; that when he and Welch were married, he already had
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one child and she had three; and that they now have three grandchildren. Welch’s
husband stated that after the crash Welch went “crazy” and that she was “depressed,”
“felt guilty,” and had been prescribed medication. He testified that only six years
before, Welch’s own father had been killed by a car while he was riding his
motorcycle. He further said that Welch felt remorse over the crash and that he
believed, based on the support of their family, Welch could fulfill the conditions of
probation, which would include completely abstaining from alcohol. On cross-
examination, he theorized that after the crash, Welch “was trying to kill herself,
because she kept saying that she needed to die in the accident.”
2. Jury Charge, Closing Argument, and Sentence
After both sides rested, the trial court read the charge to the jurors. The jury
charge provided the jurors with four verdict-form options, two of which provided for
a sentence of less than 10 years and a recommendation that Welch’s sentence be
suspended and Welch be placed on community supervision.
During closing argument, the State highlighted that even after the crash, Welch
had been arrested for public intoxication and had attempted to start her vehicle after
she had been drinking. According to the prosecutor, these events demonstrated that
Welch had no remorse, shame, or guilt because she was not changing her behavior. 2
2
[PROSECUTOR:] And if that’s not enough, you would think that
regardless of how you get to the point to where you’re drunk, you know,
on a Sunday afternoon and kill somebody, however you get there, you
would think that if you had any remorse at all or any shame or any guilt, that you
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Welch’s counsel began his closing argument by conceding that a vehicle was a
deadly weapon—stating he viewed the concession as necessary to preserve his
credibility with the jury.3 But the bulk of Welch’s counsel’s closing argument focused
on asking the jurors for a ten-year probated sentence. He explained that even in that
case, Welch would be required to spend 120 days in jail, and that the trial court has a
would change your behavior. And we know that, ironically, it’s the same
trooper that responds and arrests her for public intoxication, getting
drunk and raising Cain, just a few months after this happened. And
even worse, in my mind, is that Judge Walton put a condition on her
bond that she have this machine in her car to where she can’t drink and
drive. And but for Judge Walton, we might be here again on another
trial, because she’s in that car, blowing on that tube, trying to get that car
started just two months after she’s killed somebody.
[Emphasis added.]
3
[WELCH’S COUNSEL:] . . . I want to start by discussing the last
page, the so-called “special issue.” Here in Texas, we call them -- call it
a deadly weapon finding. You ask yourself, is a motor vehicle something
that in the manner of its use or intended use is capable of causing death
or serious bodily injury? Now, you know, if I were to blow all my credibility in
front you guys, I would say, “Well, no.” The fact of the matter is any time any of us
starts our car and pulls it onto a public road, that vehicle is capable of causing serious
bodily injury or death. It’s the nature of the -- the instrument. So I’m not going to
argue about that. . . .
....
. . . That’s one of those things that has always seemed rather strange to
me. But anyhow, it’s pretty hard to argue that a car can’t be a deadly
weapon. I got an ink pen in my pocket that could qualify as a deadly
weapon.
[Emphasis added.]
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variety of “stringent rehabilitation facilities” where it could send Welch. Welch’s
counsel argued that the State’s rehabilitation programs would not be easy for Welch,
as he described one as “a very nasty program” but “very effective.”
Finally, Welch’s counsel took exception to the prosecutor’s characterization of
Welch as lacking remorse and became so upset that the court reporter indicated that
Welch’s counsel was weeping.4
The jurors answered “Yes” to the question of whether Welch’s truck was a
deadly weapon and unanimously assessed Welch’s punishment at 20 years’
confinement. The trial court rendered judgment in accordance with the jury’s verdict,
and this appeal followed.
4
[WELCH’S COUNSEL:] We’ve got a situation, I -- I -- I disagree with
the State when they claim that this lady doesn’t have any remorse about
what happened. Her father, growing up, it happened the same way.
(Weeping) That’s why she -- that’s why she said she should have died in
that wreck. I apologize. I just lost my wife, and I’m -- I’m sensitive to
death issues.
I think this lady should be given a chance. Yes, Granddad West is
gone. There’s nothing we can do about that. There’s no point taking
Grandma Welch away from her grandkids, you know, for some really
extended time, and putting her in a nasty Texas prison, which basically
are just as much of an incubation unit for future criminals as they are
rehab -- rehabilitation facilities.
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III. DISCUSSION
A. Direct Appeal is Generally an “Inadequate Vehicle” for Raising an
Ineffective-Assistance-of-Counsel Claim
The Sixth Amendment guarantees a criminal defendant the effective assistance
of counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const.
amend. VI. To establish ineffective assistance, an appellant must prove by a
preponderance of the evidence that her counsel’s representation was deficient and
that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App.
2013); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The record
must affirmatively demonstrate that the claim has merit. Thompson v. State, 9 S.W.3d
808, 813 (Tex. Crim. App. 1999).
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). The court of criminal appeals has affirmed that direct appeal is
“usually an inadequate vehicle for raising such a claim” because the record is generally
undeveloped and because “trial counsel has not had an opportunity to respond to
these areas of concern.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005); Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Indeed, the
record on direct appeal will generally “not be sufficient to show that counsel’s
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representation was so deficient as to meet the first part of the Strickland standard” as
“[t]he reasonableness of counsel’s choices often involves facts that do not appear in
the appellate record.” Mitchell, 68 S.W.3d at 642.
“[C]ounsel should ordinarily be accorded an opportunity to explain her actions
before being condemned as unprofessional and incompetent.” Bone v. State, 77
S.W.3d 828, 836 (Tex. Crim. App. 2002). Absent such an opportunity, an appellate
court should not find deficient performance unless the 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). In reviewing allegations under the deficient-
performance prong of Strickland, an appellate court “must not second-guess legitimate
strategic or tactical decisions made by trial counsel in the midst of trial.” State v.
Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008).
B. Welch Misstates the Law for Reviewing Allegations of Deficient
Performance during the Punishment Phase
Welch begins by citing Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980),
to contend that “[t]he standard of review for ineffective assistance of counsel at the
punishment stage differs from the Strickland two-prong test” and that “[t]he right to
effective assistance of counsel at the punishment stage entitles appellant to counsel
‘reasonably likely to render and rendering reasonably effective assistance.’” This
statement is incorrect.
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Under Duffy, a court of criminal appeals case decided before Strickland, the
defendant was not required to demonstrate prejudice when the alleged deficient
performance occurred during a noncapital sentencing proceeding. 607 S.W.2d at 516.
However, nearly twenty years ago in Hernandez v. State, the court of criminal appeals
overruled Duffy and held that both prongs of the Strickland test are applicable to
ineffective-assistance-of-counsel claims alleging deficient attorney performance at a
punishment hearing. 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).
Thus, to establish an ineffective-assistance-of-counsel claim during a
punishment proceeding, a defendant is required to prove both deficient performance
and prejudice arising from the deficient attorney performance. Id.; Garcia v. State,
No. 13-98-144-CR, 1999 WL 33757537, at *1 (Tex. App.—Corpus Christi Dec. 30,
1999, no pet.) (not designated for publication) (affirming that infective assistance of
counsel, “whether it pertains to the guilt/innocence phase or the punishment phase, is
reviewed according to the [two-pronged] standard in Strickland”).
C. Strickland’s Prejudice Prong
Most times, resolution of the prejudice question disposes of an ineffective-
assistance-of-counsel claim. For that reason, courts may review a claim of prejudice
before examining the alleged deficiencies in counsel’s performance:
[T]here is no reason for a court deciding an ineffective assistance claim
. . . even to address both components of the inquiry if the defendant
makes an insufficient showing on one. In particular, a court need not
determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the
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alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed.
Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
Strickland’s prejudice prong requires a showing that counsel’s errors were so
serious that they deprived the defendant of a fair trial—a trial with a reliable result. Id.
at 687, 104 S. Ct. at 2064. In other words, an appellant must show a reasonable
probability that the proceeding would have turned out differently without the
deficient performance. Id. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. A
“reasonable probability” is a probability sufficient to undermine confidence in the
outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. We
must ultimately focus on examining the fundamental fairness of the proceeding in
which the result is being challenged. Strickland, 466 U.S. at 696, 104 S. Ct. at 2069.
“[A] verdict or conclusion only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record support.” Id. at 696, 104
S. Ct. at 2069.
D. Analysis
1. Welch Failed to Demonstrate Prejudice
Welch devotes a single paragraph of her 47-page brief to the claim of prejudice,
and that paragraph does no more than rehash her counsel’s alleged deficiencies:
The harm and prejudice in this case is the 20 years with a deadly
weapon finding. If counsel’s wife had not recently passed, there would
have been no weeping before the jury, no sensitivity to death issues, and
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a better effort to prove up eligibility for probation. There would have
been an objection to the prosecutor’s indirect comment on Appellant’s
failure to testify, and more focus on mitigating punishment. Without the
recent loss of a spouse, you would have seen a clearer mind that could
present a clear argument to the jury, and ask them to allow Ladonna
Lynn Welch to go prove herself. The jury did not get to see the
Ladonna Lynn Welch that had never been in trouble before, nor did the
jury get to see the Ladonna Lynn Welch who acted soberly for over a
year before probation, nor the Ladonna Lynn Welch who had a good
start at proving herself.
This conclusory summation, which relies solely on conjecture and speculation,
fails to show a reasonable probability that the allegedly deficient performance from
her counsel caused Welch prejudice; thus, we overrule her sole issue on this basis. See
Hernandez, 988 S.W.2d at 771–72; Garcia, 1999 WL 33757537, at *3 (“Even if we
assume, for the sake of argument, appellant successfully demonstrated counsel’s
deficient performance, appellant has failed to establish a reasonable probability that,
but for counsel’s error, the punishment assessed would have been different.”).
2. No Record to Support Deficient Performance
Though Welch fails to demonstrate prejudice, in the interest of thoroughness,
we review and briefly analyze the alleged individual deficiencies of her counsel’s
representation. In doing so, we note that while the first alleged deficiency is
reviewable on this record, the second, third, fourth, fifth, sixth, and seventh alleged
deficiencies consist of Welch’s appellate counsel inappropriately second-guessing
Welch’s trial counsel’s strategy and demonstrating how the lack of a developed record
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plagues an ineffective-assistance-of-counsel claim on direct appeal. Goodspeed, 187
S.W.3d at 392.
a. No Evidence of No Prior Felony Convictions
Welch argues that her trial counsel’s performance was deficient because he
failed to present evidence that Welch had never been convicted of a felony—a
necessary requirement for a defendant to establish in order to receive community
supervision. See Tenery v. State, 680 S.W.2d 629, 640 (Tex. App.—Corpus Christi 1984,
pet. ref’d) (“Appellant, not the State, had the burden of establishing his eligibility for
probation. A jury may not recommend community supervision in its verdict unless
both the sworn motion and the evidence show, and the jury finds in its verdict, that the
defendant has never before been convicted of a felony in this or any other state . . . .”
(citation omitted)). Welch contends that even though the application for community
supervision was filed and even though the jury charge correctly instructed the jurors
that the application had been filed, it was her burden to establish that she had never
been convicted of a felony and because her counsel set forth no such evidence, his
performance was deficient. The sentence imposed by the jury made Welch ineligible
for community supervision; thus, her contention is of no moment.
In addition to having never been convicted of a felony, to be eligible for
community supervision, a defendant must receive a sentence of not more than 10
years. See Tex. Code Crim. Proc. Ann. art. 42A.056(1). The jurors assessed Welch’s
punishment at 20 years’ confinement. Welch offers no argument why the jury would
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have imposed a shorter sentence had it known she lacked prior felony convictions.
Thus, because the jury assessed Welch’s punishment at 20 years’ confinement,
preventing Welch from qualifying for community supervision no matter her prior
criminal record, Welch’s counsel’s failure to present evidence that Welch had never
previously been convicted of a felony was inconsequential. See Ex parte Cash, 178
S.W.3d 816, 819 (Tex. Crim. App. 2005) (finding no ineffective assistance of counsel
for failing to properly file a pretrial motion for probation because “the record reflects
that the jury sentenced applicant to 40 years in prison, which is considerably more
than 10 years in prison”); Gonzales v. State, 748 S.W.2d 510, 513 (Tex. App.—Houston
[1st Dist.] 1988, pet. ref’d) (holding that “[b]ecause the jury assessed punishment at 40
years confinement, the appellant was ineligible to receive probation,” so the “trial
counsel’s failure to establish the appellant’s entitlement to probation was
inconsequential”).
b. Crying During Closing Argument
Welch next argues that her counsel’s statement that he is sensitive to death
because his wife had recently died and the fact that he also wept during closing
argument represents deficient performance. Welch cites no authority for the
proposition that her trial counsel’s “sensitivity to death issues,” even if true,
represents deficient performance. Although Welch contends that by crying when
discussing death, her trial counsel was effectively aligning himself with the
prosecutor’s case, her contention is mere speculation and essentially impermissibly
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invites us to second-guess her trial counsel’s strategy in how to present his closing
argument. Cf. Bone, 77 S.W.3d at 836 (“A vague, inarticulate sense that counsel could
have provided a better defense is not a legal basis for finding counsel constitutionally
incompetent.”). Accordingly, nothing in our record supports that Welch’s trial
counsel’s performance was deficient due to weeping or having “sensitivity to death
issues.”
c. Failure to Object to the Prosecutor’s Closing Argument
Welch next complains that her counsel’s assistance was ineffective because he
failed to object to the prosecutor’s closing argument that implicitly commented on
Welch’s failure to testify when the prosecutor stated Welch had not shown any
remorse. However, the prosecutor did not comment about Welch’s failure to testify
at the punishment trial, but instead about her actions after the offense.5
Therefore, Welch’s trial counsel’s performance was not deficient for failing to
object.
d. Concession of a Vehicle as a Deadly Weapon
Welch next complains that her trial counsel’s performance was deficient
because he conceded in closing argument that a vehicle is a deadly weapon. The court
But again, even if the prosecutor’s closing argument had included an improper
5
comment on Welch’s failure to testify at the punishment trial, Welch has failed to
demonstrate that the isolated comments, situated within the broader closing argument
and against the backdrop of the testimony, caused her prejudice. See Ex parte White,
160 S.W.3d 46, 55 (Tex. Crim. App. 2004).
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of criminal appeals has held that whether a vehicle constitutes a deadly weapon is
decided on a case-by-case basis. See Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim.
App. 2005) (“We do not suggest that a defendant should be charged with using a
vehicle as a deadly weapon every time the offense of evading arrest or detention is
committed. The determination to seek a deadly weapon finding in those
circumstances is a fact-specific inquiry, and the facts will not always support such a
finding.”). For a vehicle to be considered a deadly weapon, it must be shown that the
vehicle “in the manner of its use or intended use is capable of causing death or serious
bodily injury.” Tex. Penal Code Ann. § 1.07(a)(17)(B); Drichas, 175 S.W.3d at 798.
Given the overwhelming evidence at the punishment trial that the vehicle
driven by Welch caused the death of David, we cannot conclude that Welch’s
counsel’s strategy to concede that a vehicle was a deadly weapon was illogical or
unreasonable when Welch’s counsel even explained that he was conceding the issue to
maintain his credibility. See Martin v. State, 265 S.W.3d 435, 447 (Tex. App.—Houston
[1st Dist.] 2007, no pet.) (finding no ineffective assistance of counsel when defense
counsel called the defendant a liar and a thief because “taken in the full context of
counsel’s apparent strategy to gain credibility with the jury, we cannot conclude that
these statements constituted ineffective assistance of counsel”).
Accordingly, his concession during closing argument did not represent
deficient performance.
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e. Statement of Community-Supervision Law
Welch complains that her trial counsel’s statement of community-supervision
law during closing argument “seemed to convey to the jury confusion about how the
law works on probation.” These kinds of vague complaints are insufficient to
demonstrate deficient performance. See Bone, 77 S.W.3d at 836.
Moreover, our review of Welch’s counsel’s closing argument does not reveal
such confusion. Rather, because Welch’s counsel’s closing argument was focused on
trying to obtain community supervision rather than incarceration, his concern was not
to provide a statement of community-supervision law, but to explain that community
supervision would not mean that Welch was getting off lightly. Accordingly, his
statement of community-supervision law does not present deficient performance.
f. Only Calling Welch’s Husband as a Witness and Not
Emphasizing the Gravity of Welch’s Punishment
In her sixth and seventh allegations of deficient performance, Welch complains
that her trial counsel should have called more than one witness and should have
emphasized the gravity of Welch’s punishment. However, decisions regarding calling
witnesses and what points to emphasize in closing argument were Welch’s trial
counsel’s to make. See Duckworth v. State, 89 S.W.3d 747, 752 (Tex. App.—Dallas
2002, no pet.) (rejecting ineffective-assistance-of-counsel argument on direct appeal
that “counsel’s closing argument should have been more strenuous”); see also McCoy v.
Louisiana, 138 S. Ct. 1500, 1516 (2018) (Alito, J., dissenting) (reciting that “[a]mong
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the decisions that counsel is free to make unilaterally are . . . calling defense
witnesses[] and deciding what to say in summation”). Nothing in the record reveals
any other witnesses Welch would have called.
Therefore, we conclude that Welch’s trial counsel’s performance was not
deficient under the first prong of Strickland.
IV. CONCLUSION
We conclude that Welch failed to show any prejudice arising from her trial
counsel’s performance. Accordingly, we overrule her sole issue and affirm the
judgment of the trial court.
/s/ Dabney Bassel
Dabney Bassel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: January 31, 2019
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