Tony Lynn Rose AKA Tony Rose v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-21-00178-CR
___________________________

TONY LYNN ROSE AKA TONY ROSE, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 355th District Court
Hood County, Texas
Trial Court No. CR14328

Before Kerr, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Birdwell
 MEMORANDUM OPINION

I. Introduction

Late one night in August 2018, Appellant Tony Lynn Rose aka Tony Rose used

methamphetamine and then called for an ambulance after the ensuing drug-induced

anxiety attack made him think that he “was about to die.” The hospital gave him

Ativan 1 at 1:52 a.m. to calm him and then, noting that he was “awake, alert and

oriented,” discharged him at 2:36 a.m. Rose “took off walking” at 2:51 a.m. At 4:03

a.m., a sheriff’s deputy returned him to the emergency room. When Rose refused to

be checked back into the hospital, the deputy took him to the Hood County Jail on a

public intoxication charge.

At the jail, Rose became disruptive. Jail staff decided to move him from the

common holding cell to an individual padded cell for his protection and the

protection of other inmates in the common holding cell. During the transfer, Rose

kicked Officer Christopher Head’s right hip or upper right leg hard enough to knock

off the officer’s radio clip, but he stopped struggling immediately when confronted

with a pepper ball gun. The trial court admitted a jail recording of the exchange and

allowed it to be published to the jury. Officer Head testified that Rose’s kick had

been intentional, and Rose testified that he did not remember fighting with the

1
Ativan is an anti-anxiety drug. Boyer v. State, No. 02-09-00092-CR, 2010 WL
3432843, at *8 (Tex. App.—Fort Worth Aug. 31, 2010, pet. ref’d) (per curiam) (mem.
op., not designated for publication).

2
officers, that he would never intentionally hurt an officer, and that he did not see on

the video where he had actually kicked the officer.

The jury found Rose guilty of assault on a public servant, a third-degree felony.

See Tex. Penal Code Ann. § 22.01(b)(1). After Rose pleaded true to an enhancement

paragraph alleging a prior felony theft conviction, the jury assessed his punishment at

sixteen years’ confinement, and the trial court entered judgment accordingly. See id.

§ 12.33 (setting out second-degree-felony punishment range of 2 to 20 years and up to

a $10,000 fine), § 12.42(a) (enhanced punishment). Rose then filed a motion for new

trial, arguing that he had received ineffective assistance of counsel. After a hearing,

the trial court denied the motion, and this appeal followed.

In three issues, Rose complains that the evidence is insufficient 2 to show that

he intentionally or knowingly assaulted a public servant and that he received

ineffective assistance of counsel during punishment from his retained attorney.3 We

affirm the trial court’s judgment because the record is insufficient to support his

ineffective-assistance complaint but sufficient to support his conviction.

2
Rose divides his complaint between legal and factual sufficiency, but that is no
longer the standard. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)
(overruling Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996)).
3
A criminal defendant is entitled to effective assistance from retained counsel.
Cuyler v. Sullivan, 446 U.S. 335, 344–45, 100 S. Ct. 1708, 1716 (1980); Aldrich v. State,
296 S.W.3d 225, 231–32 (Tex. App.—Fort Worth 2009, pet. ref’d) (op. on reh’g).

3
 II. Sufficiency

In our evidentiary-sufficiency review, we view all the evidence in the light most

favorable to the verdict to determine whether any rational factfinder could have found

the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex.

Crim. App. 2017). This standard gives full play to the factfinder’s responsibility to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at

2789; Harrell v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021). The factfinder

alone judges the evidence’s weight and credibility. See Tex. Code Crim. Proc. Ann.

art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App. 2021). We must

presume that the factfinder resolved any conflicting inferences in favor of the verdict,

and we must defer to that resolution. Braughton v. State, 569 S.W.3d 592, 608 (Tex.

Crim. App. 2018).

As authorized by the elements of the offense, see Tex. Penal Code Ann.

§ 22.01(b)(1), and by the indictment, see Hammack v. State, 622 S.W.3d 910, 914 (Tex.

Crim. App. 2021), the jury could find Rose guilty if it found beyond a reasonable

doubt that Rose had intentionally or knowingly caused bodily injury to Christopher

Head, a detention officer for the Hood County Sheriff’s Office, by kicking him on or

about the upper leg while Head was lawfully discharging an official duty and while

Rose knew that Head was a public servant. A person acts intentionally, or with intent,

4
with respect to the nature of his conduct or to a result of his conduct when it is his

conscious objective or desire to engage in the conduct or cause the result. Tex. Penal

Code Ann. § 6.03(a). He acts knowingly, or with knowledge, with respect to the

nature of his conduct or to circumstances surrounding his conduct when he is aware

of the nature of his conduct or that the circumstances exist, and he acts knowingly, or

with knowledge, with respect to a result of his conduct when he is aware that his

conduct is reasonably certain to cause the result. Id. § 6.03(b).

A. Guilt–innocence evidence

Officer Head identified Rose both from his in-person appearance at trial and

from Rose’s August 5, 2018 booking photo, which was admitted into evidence and

published to the jury. In the photo, Rose is shirtless, which is how he arrived at the

jail.

Officer Head testified that after Rose was booked and placed into a holding

cell, he became “upset” and started hitting the holding cell window. Sergeant Aaron

Bruner, Officer Head’s supervisor, testified that Rose had been very agitated when he

arrived at the jail, that Rose had been kicking the holding cell door and screaming, and

that Rose had tried three or four times “to escalate things in the cell and fight with

other individuals” by cursing at them. Sergeant Bruner decided to move Rose to a cell

with padded foam walls to avoid disturbing the other inmates in the holding cell and

to keep Rose from harming himself or others. He asked Officers Head and Collins to

assist him.

5
 As they moved Rose, Officer Head noticed that Rose was wearing drawstring

shorts. Because inmates are not allowed to have any string in the padded cell—

“because they could hang themselves”—he began to remove the drawstring. At that

point, Rose “reached his leg up and kicked [Officer Head] in [his] right hip, knocking

[his] radio clip off [his] radio.” Officer Head testified that it hurt when Rose kicked

him, that Rose had kicked him hard enough to break the radio clip, and that Rose had

meant to kick him based on “[t]he way his leg motioned up forward and then swung

to the right on [Officer Head].” After Rose kicked Officer Head, Sergeant Bruner

drew his pepper ball gun, which caused Rose to immediately stop resisting.

Officer Head testified that Rose’s movement was not part of a struggle to get

away and that Rose knew that he was a jailer. The trial court admitted into evidence

and allowed the State to publish to the jury a 2018 photo of Officer Head in his jailer

uniform.

The trial court admitted into evidence twenty-eight seconds of video of the

incident and allowed it to be published to the jury. When the video begins, Officer

Head, wearing a jailer uniform, is on Rose’s left; Officer Collins is on Rose’s right; and

Rose’s hands are handcuffed behind his back. Sergeant Bruner approaches as Officer

Head bends at the waist to pull Rose’s drawstring, and then Rose starts to swerve

away. Officer Collins moves with Rose, continuing to hold onto Rose’s arms; the

interposing of his body prevents the recording from showing the kick. At 00:15, there

is no radio clip on the floor, and Rose is facing Officer Head, with Officer Collins

6
behind Rose, holding onto Rose’s handcuffed arms. At 00:16, the radio clip has

landed on the floor, as Officer Collins, still holding Rose’s arms, swings him around

and then lets him go when Sergeant Bruner draws his pepper ball gun, at which point

Rose stops struggling.

The video had no audio track, but Officer Head testified that Rose had cursed

at them during the incident. Sergeant Bruner’s testimony matched Officer Head’s,

including that Rose had tried to cause harm when he kicked Officer Head.

Rose began his testimony by recounting his prior criminal convictions: a 2012

burglary-of-a-building conviction; a 2012 class A misdemeanor assault–bodily-injury-

of-a-family-member conviction; a 2006 third-degree-felony theft conviction for which

he received probation that was subsequently revoked; and a misdemeanor conviction

for falsifying a drug test. He testified that he never had any problems with officers,

with following rules, or with fighting during his previous sojourns in state and county

jails. He then offered, and the trial court admitted into evidence, his hospital records

from that night.

Rose claimed at trial that his girlfriend had brought the methamphetamine, but

he told hospital personnel that he had found it laying around the house and that he

had been sober for several months.4 The next thing he remembered after using the

drugs was going to the hospital. He lived around a mile from the hospital, so he

Rose’s hospital records reflect that he told medical personnel that he had
4

smoked and swallowed the methamphetamine and had placed it “rectally.”

7
started walking home after the hospital discharged him. When asked if he

remembered being arrested on his way home, Rose said that he recalled being put in a

vehicle and asked if he wanted to go back to the hospital or to go to jail. When he

told the officer that he did not want to go back to the hospital, he was taken to the

jail.

Rose stated that he was initially placed in a cell with other inmates but that he

had tried “to get a separate room so [he could] be emotional” away from other men.

He had been upset that he would lose full custody of his son and did not know where

his son was at that time. 5 He also testified that he did not remember being in the

holding cell and remembered nothing after the Ativan dose at the hospital. He

testified as follows during cross-examination:

Q. All right. You’re telling this jury that you don’t remember anything
that happened when they took you out of that first jail cell?

A. I do not -- I don’t remember anything like that at all. I’m not
violent like that at all. I was more emotional and crying, not violent in
the video and the next day when I was talking to them about the
situation.

Q. Well, how can you remember if you were emotional if you
can’t remember anything else?

A. I mean, going from losing a child, you know, and everything
else, I mean, everybody would be emotional about that in my eyes.

The hospital records note that at 4:10 a.m., a Child Protective Services
5

caseworker called the hospital to ask for information about Rose. The hospital staff
told the caseworker that Rose had been discharged and to contact the sheriff’s office.

8
 Q. You remember being emotional but you don’t remember
anything else?

A. I remember being emotional the next day when they were
telling me everything that -- what happened, what supposedly happened.

Q. You just told us you were emotional in the jail cell.

A. I would have to be emotional. Like, I mean --

Q. Sir, Officer Bruner testified that you were very agitated in that
first jail cell.

A. I mean, I don’t really remember like inside the jail cell. I seen
the video.

Q. He testified that you were very loud in there?

A. I probably said some things I shouldn’t have said.

Q. Like what?

A. I wouldn’t remember.

Q. He testified you were trying to fight in there?

A. No, sir.

Q. Trying to rile people up?

A. Definitely not, sir.

Q. Okay. So Officer Bruner is lying?

A. I wouldn’t say that I was trying to rile anybody up. I was
trying to get to another cell by myself because I was going through a --
the whole drug thing. Like I said, I just wanted to be by myself and not
be around anybody at all.

Q. Well, he testified you were trying to rile people up.

9
 A. I wasn’t trying to fight or anything like that.

Q. So is he lying?

A. I’m not saying anything -- like the whole situation is you’re
saying that I did something I didn’t do, so --

Q. Is Officer Bruner lying?

A. About -- can you repeat the question, sir?

Q. He testified you were trying to get people riled up, that you
were loud and that you were agitated.

A. I wasn’t trying to get people riled up. I was trying to move
cells by myself.

B. Analysis

Rose argues that the evidence is insufficient to support his conviction in that

the jail video may show his resistance and lack of cooperation but not that he

intentionally or knowingly kicked Officer Head. The jury disagreed about the

evidence’s sufficiency: after reviewing the video, hearing the testimony—from which

they had to determine if they believed the officers or Rose—and viewing the other

evidence, the jury deliberated for only twelve minutes before finding Rose guilty.

Because we may not re-evaluate the evidence’s weight and credibility and substitute

our judgment for the jury’s, see Queeman, 520 S.W.3d at 622, and because viewed in the

light most favorable to the verdict, the jury could have found beyond a reasonable

doubt that Rose intentionally or knowingly kicked Officer Head and that he knew the

10
officer was a public servant, see Jackson, 443 U.S. at 319, 99 S. Ct. at 2789, we overrule

Rose’s second and third issues.6

III. Ineffective Assistance

In his first issue, Rose complains that his counsel was ineffective during the

trial’s punishment phase.

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 his 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).

In evaluating counsel’s effectiveness under the deficient-performance prong,

we review the totality of the representation and the particular circumstances of the

case to determine whether counsel provided reasonable assistance under all the

circumstances and prevailing professional norms at the time of the alleged error. See

Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307; Thompson, 9

6
We reordered Rose’s issues to address those providing the greatest potential
relief first. See Benavidez v. State, 323 S.W.3d 179, 182 (Tex. Crim. App. 2010).

11
S.W.3d at 813–14. Our review of counsel’s representation is highly deferential, and

we indulge a strong presumption that counsel’s conduct was not deficient. Nava, 415

S.W.3d at 307–08.

Strickland’s prejudice prong requires a showing that counsel’s errors were so

serious that they deprived the defendant of a fair trial—that is, a trial with a reliable

result. Strickland, 466 U.S. 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., 104 S. Ct. at 2069.

An appellate court may not infer ineffective assistance simply from an unclear

record or a record that does not show why counsel failed to do something. Menefield v.

State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Mata v. State, 226 S.W.3d 425, 432

(Tex. Crim. App. 2007). Trial counsel “should ordinarily be afforded an opportunity

to explain his actions before being denounced as ineffective.” Menefield, 363 S.W.3d at

593.

12
A. Punishment trial

The prosecutor’s opening statement during the October 21, 2021 punishment

phase centered on determining the just and appropriate punishment based on

additional evidence about Rose’s background—including more about his criminal

history—and “about the kind of person he is.” The prosecutor stated, “You’re going

to take all of that into account and decide what the appropriate, just punishment is in

this case.” Rose’s counsel declined to make an opening statement.

The State recalled Sergeant Bruner as the sole punishment witness. Through

Sergeant Bruner, the State offered, and the trial court admitted into evidence another

class-A misdemeanor assault–bodily injury conviction that Rose committed on the

same day (November 26, 2011) as the one entered during the guilt–innocence phase.

The second assault involved a woman who was not a member of Rose’s family or

household. Rose had pleaded guilty to both assaults—specifically, to having

intentionally or knowingly caused bodily injury to the household member by grabbing

her arms or by throwing her on the floor and to having intentionally or knowingly

caused bodily injury to the other woman by striking her with his hand. His trial

counsel asked no questions during punishment.

During his punishment-phase closing statement, trial counsel asked the jury to

look at Rose’s previous punishments: seventeen days for falsifying drug test results; a

concurrent fifty-three days for the assaults; eight months for burglary; and three years

for theft. He reminded the jury of the two-to-twenty-year punishment range and

13
asked, in light of Rose’s prior sentences, for a mid-range sentence, stating, “[I]t was

three last time. It ought to be more than double that this time. I mean, let’s be

realistic. . . . What’s wrong with somewhere in the middle?” He reminded the jury

that there was no serious injury to Officer Head and that Rose was not a “hardened

criminal.” He also asked the jury not to impose a fine, stating, “I’ve been doing this

36 years and nobody knows where the money goes or if they ever get it because it

disappears somewhere into the State.”

In rebuttal, the prosecutor reminded the jury that Rose had abused

methamphetamine that night and that his prior criminal-justice experiences had not

stopped him from breaking the law. The prosecutor asked the jury to assess a twenty-

year sentence and no fine. During deliberations, the jury issued a note asking, “Is

there any drug rehab given in prison? Can we request it?” The jury deliberated from

1:20 p.m. to 2:05 p.m. before assessing a sixteen-year sentence and no fine.

B. New-trial hearing

Rose, his trial counsel, his father, and his sister testified during the new-trial

hearing, which was held two months after the punishment trial.

Rose testified that in the weeks before trial, he did not have a conversation with

his attorney about witnesses to call during the punishment phase and why he might

want to call them. He stated that his counsel did not ask him about witnesses until he

“was sitting in that chair right there the day of trial.” He stated that he had wanted to

testify during the punishment phase but that his attorney had not called him as a

14
witness and that he would have called as witnesses his son, his father, and his sister,

with whom he claimed good relationships, but that no one told him to call them.

Rose said that if he had been allowed to talk to the jury during punishment, he would

have told them about himself and his work history, his relationship with his son, and

his mental health history.

Rose testified that, growing up, he had been successful in sports and motocross

and had been scouted for a college basketball team. He stated that he attended Le

Cordon Bleu for college. As to his work history, Rose testified that he would have

told the jury that he was a hard worker and had worked in welding and as a union iron

worker traveling “all around America.” He had worked on the Tesla facility in Reno,

a Frost Bank in San Antonio, and a Lowe’s in Maui. He had also worked on custom

homes and remodeling boat docks. He did not identify who his employer had been at

the time of the assault, and his hospital records stated that he was self-employed. In

his trial testimony, he said that he had a full-time job, but in neither his trial nor new-

trial testimony did he identify an employer who would or could have testified on his

behalf.

Regarding his son, Rose testified that he would have told the jury about how

his son was his best friend, that they played sports, and that they had a special

relationship. He did not identify how old the child was or describe how the

relationship was special, other than to note that the “best day of [his] whole life” was

15
his son’s recent baptism. He did not mention any CPS history, although his hospital

records reflect that CPS had called to find him while he was in the county jail.

Rose testified that if he had been asked about his mental health history, he

would have told the jury that he was “a very compassionate person,” that he was “all

about family,” and that he had been walking home from the hospital to check on his

son. He did not bring any mental health records or an opinion from a mental health

expert to the new-trial hearing.

Rose’s trial counsel testified that he did not recall a specific conversation with

Rose about mitigation witnesses but stated, “I always look for some help in these kind

of cases.” He stated that the best mitigation witness would be a defendant’s

employer, followed by his preacher. He did not testify about whether he contacted

Rose’s employer, but he testified as follows regarding Rose’s preacher, father, and

sister:

Q. Did you know he had a preacher?

A. Well, he wasn’t coming.

Q. Did you talk to him?

A. No.

Q. Well, did you know who he was?

A. No. I don’t remember.

Q. And if you knew who he was, would -- would you have had
him there?

16
 A. If -- if he would have helped, yes. You’re always looking for
help in these kind of things.

Q. Well, what about his dad?

A. His dad -- I had a lot of conversations with his dad.

Q. Would he be a good witness?

A. I don’t know. Your family always sticks up for you, and juries
are smarter than that. They know that the family is always going to --
you really need somebody outside the family for character witnesses
because, I mean, juries have kids. They know they excuse their own kids
and families do too.

Q. Did you ever talk to his sister?

A. I don’t know. I think so, but I don’t remember.

Q. Do you know what she does for a living?

A. No.

Q. Do you know she’s a teacher?

A. No.

Q. So is it your strategy to not call family as a general rule?

A. No. You always look -- look for people, anybody that will
help, but if their family is decent-looking and they act right, yeah, you
call them.

Q. And he says that you didn’t discuss all of this with him prior
to.

A. I -- I know that I did. I always do.

Trial counsel claimed that he had told Rose that he could testify during

punishment but did not recommend it because “[Rose] was wanting to tell the jury

17
how wrong they were, and that usually backfires big time.” The trial court admitted

Rose’s page of trial notes. Among Rose’s musings were two notes, both of which

were circled. The first says, “Are you gonna talk again and say he had no injuries?”

and the other says, “Didn’t have a mark on him.” 7

Trial counsel addressed Rose’s mental health, stating, “He’s able to work. He

knows what day it is. He makes decisions,” and he said Rose had been “way too high

functioning” for a mental health dismissal of his case. Trial counsel stated that a year

later, he obtained medical records showing “basically the same thing” as the hospital

records from the day of the incident, stating “depression, substance abuse. And a

year later really didn’t help us.”

Trial counsel agreed that he could have, but did not, subpoena the jailers to

address Rose’s mental health and said that he did not subpoena them because “[t]hey

were not going to help us.” He had read their reports and because the case involved

an assault against a fellow officer, “[t]hey’re going to stick up for their decision,”

although he agreed that was a guess on his part. He agreed that Rose had done a

good job testifying during guilt–innocence but that as to punishment, “[t]he problem

is the facts were still against us.” When asked, “[A]s far as mitigating evidence, . . .

isn’t that the time to show . . . who he is as a person,” trial counsel replied, “I don’t

know.”

7
Trial counsel explained, “[I]t’s not the offense to leave a mark. The offense is
to hit the officer.” Rose testified that he would have told the jury that the officer did
not have a mark or bruises on him.

18
 On cross-examination, trial counsel testified that he had been an attorney for

over forty years, most of it practicing criminal defense in Hood County, and he agreed

that he had a pretty good understanding of what Hood County juries respond to. He

stated that his defense strategy had been to show that Rose had not intended to

commit the offense; he was not asked and did not testify about any other strategy

with regard to punishment.8

Rose’s father testified that he had talked with Rose’s trial counsel several times

but that their conversations had been about money and “[n]ot whatsoever” about his

taking the stand as a witness during Rose’s trial or about Rose’s work history or

religion. Rose’s father stated that he would have told the jury that Rose was not a

fighter but rather had a soft heart; he stated, “I don’t have no idea what happened that

night here or whatever,” but for the other thirty-five years of his life, Rose had been

“a great guy” and never a “police hater.” He stated, “I could have this whole court

full of people that [Rose] knows and some of the policem[en] that [Rose] has

associated with that we know. I could -- that would have happened.” He stated, “[I]f

you go to West Bay Marina and ask about [Rose], there’s about 400 people that lives

there and every one of them loves him.” However, other than Mose Trumble, whom

he named as a policeman in Athens, Texas, Rose’s father did not specifically identify

8
While voluntary intoxication is not a defense to a crime’s commission and
does not negate intent or knowledge, see Tex. Penal Code Ann. § 8.04(a), evidence of
temporary insanity caused by intoxication may be introduced by the actor in
mitigation of the penalty attached to the offense for which he is being tried, id.
§ 8.04(b).

19
anyone, and he did not state what Trumble or anyone else would have testified about

or that they would have been available to testify.

Rose’s sister testified that she was a school teacher, that she had spoken with

Rose’s trial counsel, and that she could have and would have testified at trial in Rose’s

favor and had never told counsel that she did not want to testify. She stated that her

testimony would have been

[t]hat [Rose]’s not a violent person. He’s very honest. He’s caring.
Never met a stranger, kind person, good dad, sees his son all the time,
every other weekend if it was his weekend, goes to all the sports, goes to
church. And he’s not violent. And I don’t know what happened that
night. I really don’t know. I wasn’t there. I can’t say. But he -- he’s not
that kind of person.

The trial court denied the motion at the hearing’s conclusion.

C. Analysis

An appellant claiming ineffective assistance of counsel at trial must identify

counsel’s allegedly erroneous acts and omissions. Strickland, 466 U.S. at 690, 104

S. Ct. at 2066; Cooper v. State, 333 S.W.3d 859, 867 (Tex. App.—Fort Worth 2010, pet.

ref’d). The appellate court then determines whether, in light of all the circumstances,

these identified acts or omissions were outside the wide range of what constitutes

competent assistance. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066; Cooper, 333

S.W.3d at 867. “[S]trategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690,

104 S. Ct. at 2066.

20
 1. Voir dire

Rose initially complains that his counsel did not conduct voir dire on the

following topics: the right to testify or not and how the jurors might feel about a

defendant’s decision to testify or not; the presumption of innocence; the burden and

standard of proof; bias; state of mind; the full range of punishment; and any

prospective juror’s personal or family experience with drug use, drug abuse, or Ativan,

or their backgrounds in medicine, counseling, law enforcement, or mental health.

The record reflects that the prosecutor asked the venire if they or their family

members had ever been arrested or had ever been a crime victim and asked for their

thoughts about fairness; waiting to decide until they had heard all of the evidence; the

full range of punishment; the Fifth Amendment privilege against self-incrimination;

the burden of proof; and the presumption of innocence.

These topics having already been covered, Rose’s trial counsel reminded the

potential jurors that there was a “double mental state” in this offense—“You have to

knowingly assault somebody that’s a public servant and you have to know that they’re

a public servant”—and that they would have to listen to all of the evidence before

reaching a verdict. He then addressed their philosophies about punishment through a

question about whether any had ever changed religions. During the new-trial hearing,

Rose’s trial counsel was not asked any questions about voir dire to explain his strategy,

and Rose does not explain which jurors were objectionable, why further questioning

might have been in order, and whether or how any of them would have been

21
challengeable for cause. See McFarland v. State, 928 S.W.2d 482, 503–05 (Tex. Crim.

App. 1996) (concluding no ineffective assistance during voir dire), abrogated on other

grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). Because we may not

infer ineffective assistance from a record that does not show why counsel failed to do

something, see Menefield, 363 S.W.3d at 593, we overrule this portion of Rose’s first

issue.

2. Punishment phase

Regarding the punishment phase of trial, Rose complains that his trial counsel

was unaware of and did not present any mitigating evidence, did not call any

witnesses, did not make an opening statement, and did not make any objections.

a. Opening statement

As with voir dire, Rose’s trial counsel was not asked at the new-trial hearing

about his reason for declining to make a punishment-phase opening statement.

Further, a defense opening statement is not required. See Tex. Code Crim. Proc. Ann.

art. 36.01(b) (“The defendant’s counsel may make the opening statement for the

defendant immediately after the attorney representing the State makes the opening

statement for the State.” (emphasis added)). And choosing not to make an opening

statement is an “inherently tactical” decision that is made based on how a trial is

unfolding, the trial strategy employed, the defense attorney’s experience and

judgment, and other factors. Taylor v. State, 947 S.W.2d 698, 704 (Tex. App.—Fort

Worth 1997, pet. ref’d) (per curiam). Accordingly, because our review of counsel’s

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representation is highly deferential and indulges a strong presumption that his

conduct was not deficient, see Nava, 415 S.W.3d at 307–08, we cannot say that

counsel’s declining to make a punishment-phase opening statement rendered his

representation ineffective, and we overrule this portion of Rose’s first issue.

b. Objections

Rose is correct that his trial counsel made no objections during either guilt–

innocence or punishment. However, during the new-trial hearing, the only question

to Rose’s counsel about an objection was as follows:

Q. Well, [Rose] says the only objection you made at the trial was
objecting to him speaking. You asked him to be quiet. Is that right?

A. That doesn’t sound right.

Q. I mean, if that’s what happened and if that’s what the record
shows, you would -- would there be any reason why you would tell him
to be quiet?

A. No.

Q. Okay. Would there be any good strategy for that?

A. I don’t know the context you’re talking about.

Q. Okay.

A. I don’t remember that. I can’t imagine calling a witness and
telling him not to testify.

Q. Okay.

A. Why would -- why would you call a witness if you didn’t want
them to speak?

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 Rose’s trial counsel had given Rose a piece of paper to write notes on because

he could not allow him to talk during another witness’s testimony. He stated, “I

might have to tell him to be quiet and point to the notes so he can write down

things.” During Rose’s cross-examination in the trial’s guilt–innocence phase, his trial

counsel asked the trial court to remind Rose not to answer unless there was a question

and to wait to answer until the prosecutor finished the question. Later in Rose’s

cross-examination, he also asked the trial court to remind Rose to slow his rate of

speech. The record does not reflect an objection by his trial counsel during Rose’s

testimony.

A failure to object will not support a claim of ineffective assistance unless the

trial court would have erred by overruling the objection, Prine v. State, 537 S.W.3d 113,

117–18 (Tex. Crim. App. 2017),9 and when the record is silent as to why counsel

9
State’s Exhibits 1–6 and 8 are photographs, the video, and documents showing
Rose’s prior convictions, and Rose does not explain how any of these materials were
objectionable. Rose’s counsel did not object to the State’s request to re-open and
read the enhancement paragraph to the jury, but documents supporting the
conviction listed in the enhancement had already been admitted into evidence by that
time.

In his fact statement, cf. Tex. R. App. P. 38.1(g) (stating that a fact statement
should be “without argument”), Rose appears to complain that his trial counsel
should have objected when the prosecutor asked Officer Head if Rose meant to kick
him and when he asked Officer Head if Rose knew that he was a jailer—questions
pertaining to Rose’s intent or knowledge. But Officer Head elaborated on his
affirmative responses to both questions, stating that Rose had intended to kick him
based on “[t]he way his leg motioned up forward then swung to the right on [him],”
and that he had been wearing his jailer uniform at the time, which the video showed.
Circumstantial evidence—of intent or other elements—is as probative as direct

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failed to object, it is insufficient to overcome the presumption that his actions were

part of a strategic plan, Tong v. State, 25 S.W.3d 707, 714 (Tex. Crim. App. 2000). On

this record, trial counsel’s failure to object cannot support Rose’s ineffective-

assistance claim, and we overrule this portion of his first issue.

c. Mitigation

Rose argues that it is ineffective to discount family witnesses because “juries are

smarter than that,” and that his counsel was ineffective because he unaware of and did

not present any mitigating evidence and did not call any witnesses. Rose also argues

that it is ineffective to wait until the day of trial to ask a client about character

witnesses.

Counsel has a duty to either reasonably investigate or reasonably decide that a

particular investigation is unnecessary. Wiggins v. Smith, 539 U.S. 510, 521–23, 123

S. Ct. 2527, 2535–36 (2003) (noting that the court should “focus on whether the

investigation supporting counsel’s decision not to introduce mitigating evidence of

[the appellant’s] background was itself reasonable”);10 Strickland, 466 U.S. at 690–91, 104

evidence in establishing guilt. Carter v. State, 620 S.W.3d 147, 149 (Tex. Crim. App.
2021), cert. denied, 142 S. Ct. 859 (2022); Laster v. State, 275 S.W.3d 512, 519–20 (Tex.
Crim. App. 2009).

In Wiggins, a death-penalty case, the Supreme Court concluded that defense
10

counsel’s investigation did not meet Strickland’s performance standards because the
decision to end the investigation without a social history report was neither consistent
with professional standards nor reasonable in light of the evidence in the defendant’s
social services records. 539 U.S. at 533–34, 123 S. Ct. at 2541–42. It further
concluded that the defendant had received ineffective assistance because his

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S. Ct. at 2066. In assessing the reasonableness of an undertaken investigation, a court

must consider not only the quantum of already-known evidence but also whether that

evidence would lead a reasonable attorney to investigate further. Ex parte Garza, 620

S.W.3d 801, 824 (Tex. Crim. App. 2021). Counsel’s failure to call witnesses at the

guilt–innocence or punishment phases of trial is irrelevant absent a showing that the

purported witnesses were available and that their testimony would have benefitted the

appellant. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Gomez v. State, 552

S.W.3d 422, 435 (Tex. App.—Fort Worth 2018, no pet.).

Further, there is no prejudice when the new mitigating evidence presented in a

habeas or new-trial posture “[]would barely have altered the sentencing profile

presented[] to the decisionmaker.” Sears v. Upton, 561 U.S. 945, 954–56, 130 S. Ct.

3259, 3266 (2010). Significant new mitigation evidence, on the other hand, might

include heroic military service, see id. at 955–56, 130 S. Ct. at 3266–67; a history of

chronic physical and sexual abuse of the defendant from a young age by a parent, see

Ex parte Gonzales, 204 S.W.3d 391, 399 (Tex. Crim. App. 2006); or expert testimony

about a defendant’s mental health, see Garza, 620 S.W.3d at 815–16.

sentencing jury heard only one significant mitigating factor—that he had no prior
convictions—and heard nothing about his excruciating life history, which had
included abandonment and abuse by his mother and then physical and sexual abuse in
foster care. Id. at 517, 537, 123 S. Ct. at 2533, 2543. “Had the jury been able to place
petitioner’s excruciating life history on the mitigating side of the scale, there is a
reasonable probability that at least one juror would have struck a different balance.”
Id. at 537, 123 S. Ct. at 2543.

26
 To support his ineffective-assistance argument, Rose refers us to Milburn v.

State, 15 S.W.3d 267, 270 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d),

Humphrey v. State, 501 S.W.3d 656, 663 (Tex. App.—Houston [14th Dist.] 2016, pet.

ref’d), Vela v. Estelle, 708 F.2d 954, 964 (5th Cir. 1983), and Blake v. Kemp, 758 F.2d

523, 535 (11th Cir. 1985). However, only Humphrey resembles this case.

In Milburn, a felony cocaine-delivery case in which the appellant received a

forty-year sentence (ten years longer than that requested by the State), the court found

ineffective assistance when the new-trial record showed that the parties had stipulated

to the testimony of twenty of the appellant’s friends and relatives and defense counsel

testified that he had neither investigated nor evaluated available punishment evidence.

15 S.W.3d at 268–71. In contrast, Rose’s trial counsel testified that he always

considered mitigation evidence, and despite Rose’s father’s testifying that he could

have brought a “court full” of people and that 400 people at West Marina Bay loved

Rose, he identified only one potential witness by name, did not disclose to what any

of them would have testified, and did not state that any of them would have been

available to testify. Cf. King, 649 S.W.2d at 44. Rose’s father and sister would have

testified that Rose was not violent—contrary to the assault offenses in the record to

which Rose had pleaded guilty, the jail recording, and the offense for which the jury

had just convicted him—and they would have been subject to cross-examination by

the State about all of these topics.

27
 In Vela, the defendant pleaded guilty to murder, was sentenced to 99 years’

confinement, and after exhausting his state court (Texas) remedies, sought federal

habeas corpus relief based on ineffective assistance. 708 F.2d at 956–57. The Fifth

Circuit found prejudice primarily from the admission of evidence about the murder

victim, noting,

Faced with the task of assessing Vela’s punishment, the jury was
informed that the man he had killed was kind, inoffensive, a star athlete,
an usher in his church, a member of its choir, a social worker with
underprivileged children of all races, a college student holding down two
jobs while he attended classes and played on the championship football
team, and the father of a three-year-old child. The truth of these
statements is, of course, not in issue; the point is that they are irrelevant
to the severity of Vela’s sentence[] and should not have been considered
by the jury.

. . . The State dropped a skunk into the jury box. Defense
counsel made no serious effort to either identify it as a skunk, have it
removed, or have the jury instructed to disregard its presence.

Id. at 966. Rose has identified no similar skunk in his case. Cf. id.

In Blake, another federal habeas murder case, the defendant’s sanity was the

case’s only issue. 758 F.2d at 525–28. His counsel testified at the habeas hearing that

he had made no preparations whatsoever for the trial’s penalty phase because he

believed that the defendant would be found not guilty by reason of insanity. Id. at

533. When he realized the jury would likely find his client guilty, he sought a

continuance, which was denied, and he accordingly went into the sentencing phase

with no idea of the availability of mitigating evidence that might persuade the jury not

to impose a death sentence. Id. The defendant met his prejudice burden when he

28
demonstrated that no favorable evidence was sought and that some was in fact

available. Id. at 534. His counsel had interviewed the defendant’s father on more

than one occasion and he had met with both of the defendant’s parents at his office

once before trial, but this was the extent of his investigation into character evidence.

Id. The court concluded,

This was not simply the result of a tactical decision not to utilize
mitigation witnesses once counsel was aware of the overall character of
their testimony. Instead, it was the result of a complete failure—albeit
prompted by a good faith expectation of a favorable verdict—to prepare
for perhaps the most critical stage of the proceedings.

Id. at 535.

The record here, in contrast, does not reflect a complete failure by trial counsel.

It is more like the record in Humphrey, a felony murder case in which defense counsel

called no witnesses to testify during punishment, the defendant was sentenced to life,

and the trial court held a new-trial hearing on ineffectiveness. 501 S.W.3d at 659.

Regarding the failure to present mitigating evidence during punishment, the appellant

argued that counsel had failed to adequately investigate his past to identify his various

mental health issues and difficult childhood. Id. at 662. At the new-trial hearing,

appellate counsel presented records from the appellant’s time in jail awaiting trial that

indicated he had previously been diagnosed with bipolar disorder and had received

inpatient psychiatric treatment, as well as reporting a history of loss, including

childhood abuse and the violent deaths of his brother, mother, and father. Id. at 662–

63.

29
 The appellant’s trial counsel testified that he had asked the appellant about “his

history” and “everything that would be germane[,] . . . his prior convictions, his

witnesses, and everything” and that he did not order the jail records because the

appellant had been “consistent from day one” regarding the information he provided.

Id. at 663. The appellant had been indicted for causing the death of an unborn baby

by engaging in felony evading arrest with a vehicle that resulted in a car crash. Id. at

658. He had also beaten the unborn child’s mother immediately before the crash and

had threatened to kill her, making her an unlikely witness on his behalf. Id. at 658,

664. His trial counsel testified that he did not call any witnesses because he did not

think anyone would testify on the appellant’s behalf: although the appellant had

suggested his sister, when counsel spoke with her about testifying, she refused to

cooperate and had testified at a previous parole board hearing that the appellant

should not receive parole. Id. at 663. The court concluded that Milburn was

distinguishable because the record did not show that the appellant’s trial counsel had

put forth an insufficient investigative effort or that he had lacked a thorough

understanding of the available evidence, and it showed that he had interviewed

potential witnesses—including the appellant—and had made a strategic decision not

to present any testimony. Id. at 664.

Rose testified that he would have told the jury about his work history, his

relationship with his son, and his mental health, but he did not identify for whom he

had worked either at the time of the offense or thereafter, any particular specifics

30
about his son, or any specific mental health condition or records that he would have

or could have brought to support his contentions. Cf. Ramirez v. State, No. 14-05-

00184-CR, 2006 WL 1026926, at *5 (Tex. App.—Houston [14th Dist.] Apr. 20, 2006,

pet. ref’d) (not designated for publication) (noting that the appellant’s new-trial

motion included a letter from his treating psychiatrist, who testified at the hearing

about the appellant’s condition and stated that he was not served with a subpoena

until after the trial had begun and that he had never spoken with the appellant’s trial

counsel or an investigator about the appellant).

In contrast, trial counsel explained why he did not call Rose to testify during

the punishment phase—Rose had been upset and had planned to scold the jury.

Further, during the guilt–innocence phase, the prosecutor established during Rose’s

testimony that Rose had full custody of his son and had used methamphetamine that

night while responsible for the child. The hospital records show that CPS had

become involved.

Trial counsel did not recall a specific conversation with Rose about mitigation

witnesses, although he stated that he always looked for help and that he always

discussed mitigation witnesses with his clients. Rose, on the other hand, testified that

he had not had such a conversation with his trial counsel until the day of trial and that

he would have called his father, sister, and son but that he was not told to ask them to

come. The trial court had the responsibility to determine witness credibility at the

hearing, and it denied the motion for new trial. See Tex. R. App. P. 21.3(a); Riley v.

31
State, 378 S.W.3d 453, 459 (Tex. Crim. App. 2012) (“[T]he trial court is the sole

factfinder and judge of appellant’s and counsel’s credibility at the motion for new trial

hearing, both during live testimony and in affidavits.”), overruled on other grounds by Miller

v. State, 548 S.W.3d 497 (Tex. Crim. App. 2018) (op. on reh’g).

Trial counsel testified that a jury was less likely to believe a family member, and

he could have determined that allowing Rose’s relatives to testify would open them up

to potentially prejudicial questions about Rose’s drug use, assault history, and CPS

history. Trial counsel testified that “if their family is decent-looking and they act right,

yeah, you call them,” but the record does not reflect whether Rose’s father and sister

were “decent-looking” or how—as opposed to what—they testified at the new-trial

hearing. The trial court could have chosen to rely on trial counsel’s testimony and

case assessment over the testimony of Rose and his family.

Further, Rose did not identify what additional witnesses besides his family

members could have been called or show that they would have been available and

what their testimony would have been. See King, 649 S.W.2d at 44; cf. Milburn, 15

S.W.3d at 268–71. And counsel was not questioned at the new-trial hearing about his

performance on the other tasks Rose identified. See Menefield, 363 S.W.3d at 593.

Accordingly, we cannot say that Rose has met his burden to show ineffective

assistance, and we overrule the remainder of his first issue.

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 IV. Conclusion

Having overruled all of Rose’s issues, we affirm the trial court’s judgment.

/s/ Wade Birdwell

Wade Birdwell
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: January 19, 2023

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