Opinion issued July 16, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-24-00546-CR
THE STATE OF TEXAS, Appellant
V.
DIONATE D. BANKS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Case No. 1783269
MEMORANDUM OPINION
After a jury found appellee, Dionate D. Banks, guilty of the felony offense
of murder,1 it assessed his punishment at confinement for sixty-three years.
Appellee then filed a motion for new trial, which the trial court granted, setting
1
See TEX. PENAL CODE ANN. § 19.02.
aside the jury’s guilty verdict. Appellant, the State of Texas (the “State”),
challenges the trial court’s order granting appellee a new trial as to guilt. In its sole
issue, the State contends that the trial court erred in granting the motion for new
trial.
We reverse and remand.
Background
After the jury found appellee guilty of the felony offense of murder and
assessed his punishment at confinement for sixty-three years, appellee moved for a
new trial, arguing that his trial counsel failed to provide him with effective
assistance of counsel during the guilt phase of trial because counsel did not “bench
warrant and call Odyssey Blackmore,” the person appellee was “protecting,” for
trial; “did not obtain the medical records for . . . Blackmore”; “did a 16-minute voir
dire of the venire [panel] in th[e] murder case”; “did not meet with [appellee] to
prepare for trial”; “did not hire a mitigation expert”; did not “hire[] an investigator
to investigate the facts of the case”; “did not file the election [as to punishment]
timely”; and “failed to interview all on-scene witnesses.”2
2
Appellee, in his motion for new trial, also asserted that his trial counsel provided
ineffective assistance during the punishment phase of trial. However, the trial
court granted a new trial on guilt, so we need not address appellee’s claims of
ineffective assistance related to the punishment phase of trial. See TEX. R. APP. P.
47.1.
2
At the hearing on appellee’s motion for new trial, appellee testified that
when he hired his trial counsel, Jonathan Frank, he expected that Frank “had the
capability of defending [him] in the murder trial.” Frank told appellee that he
would hire an investigator to work on appellee’s case, and appellee paid Frank
cash to hire the investigator. Appellee did not know if Frank ever hired an
investigator, despite appellee’s payment.
According to appellee, before trial, he discussed the meaning of self-defense
and defense of a third person with Frank. Frank told appellee that his actions could
have been in defense of someone who could have suffered death. However, Frank
did not “retain an expert to discuss the injuries that were suffered by” Blackmore,
the person appellee “believed [he] w[as] defending from serious imminent bodily
injury or death.” Frank also did not subpoena Blackmore’s medical records.3
Thus, according to appellee, this meant that no evidence of Blackmore’s “medical
records,” the person who, in theory, appellee believed “was suffering imminent
possibility of death or serious bodily injury” was admitted into evidence. Although
Frank subpoenaed Blackmore to appear at trial, she did not.4 Appellee did not
3
Appellee stated that he did not know whether Blackmore went to the hospital for
her injuries.
4
Appellee contradicted himself at times, also testifying that Frank did not subpoena
Blackmore to appear at trial.
3
know whether Frank had ever seen Blackmore’s medical records, and appellee had
no information on whether Blackmore had any medical treatment.
Appellee did note that he testified during the guilt phase of trial that he
believed that the complainant had a firearm and he “believed that there was a fear
of imminent serious bodily injury or death.” Appellee also was able to testify
during the guilt phase of trial that Blackmore had sustained a broken nose due to
the complainant’s actions.
Appellee further testified that, at some point before trial began, he was
offered “some plea bargain[]” and he rejected the State’s offer based on advice
from Frank. According to appellee, he was offered, in exchange for a guilty plea, a
sentence of fifteen years’ confinement the morning his trial began, and he rejected
the State’s offer in open court after “being advised” by Frank. Frank told appellee,
“We can win this.” Appellee stated that if he had known that the “evidence [was]
clear that [he] did not have the right to use lethal force in defense of a third person”
in the case, he would have accepted the State’s plea bargain agreement and not
proceeded to a jury trial.5
As to meetings with Frank before trial, appellee testified that he met with
Frank at the police station for appellee’s noncustodial interview two days after the
5
Appellee stated that if Frank “went through all of the evidence and things that
were against [him] during th[e] situation, it could’ve better made [him] understand
why [he] should’ve made the choice to take the [State’s] offer.”
4
offense. Frank also attended all of appellee’s court settings. Appellee noted that,
while he was not in custody, he met with Frank at a restaurant and “[a]t a
building.”
When appellee was in custody for violating the conditions of his bond, Frank
did not visit him. Frank also did not show appellee a videotaped recording of the
offense while appellee was in custody.6 When trial began, appellee was concerned
because he had not seen Frank the entire time that he was in custody.
Appellee further testified that on the day that trial began, he did not feel
comfortable or that they were prepared to go to trial. According to appellee, Frank
had not prepared him to testify at trial, and appellee did not know “how
cross-examination would occur” or what his “obligations [were] when someone
asked [him] a question.” When appellee told Frank he wanted a continuance,
Frank said he was prepared for trial.
Appellee also explained that, during voir dire examination, Frank did not
“have any notes written down,” and it appeared to appellee that Frank was saying
“anything that could come to his head at that moment.” Frank’s voir dire
examination of the potential jury panel members lasted only sixteen minutes.
During the State’s opening statement, Frank did not take any notes, and appellee
6
However, appellee testified that Frank showed him the videotaped recording “on
FaceTime when [he] was in the car once.” Appellee saw the videotaped recording
before trial after the State have given it to Frank. According to appellee, the
videotaped recording showed Blackmore “throw[ing] the first punch.”
5
did not see Frank using any notes for his opening statement. Appellee never saw
Frank with a “trial notebook.”
Additionally, during the testimony of law enforcement officers at trial, Frank
did not ask them any questions. When appellee testified at trial, he did not know
what questions Frank was going to ask him on direct examination, nor what the
State would ask him on cross-examination. According to appellee, if Frank had
visited him while he was in custody, he would have better known how to answer
questions and follow the trial court’s instructions during his testimony. Appellee
did not feel prepared to testify at trial.
Appellee also testified that he had his defense witnesses reach out to Frank
about testifying for the defense. He did not know what conversations Frank had
with those witnesses before trial.
Blackmore testified that appellee was a friend, and on August 14, 2022, the
complainant was killed. The complainant hit Blackmore at least once, and
appellee shot the complainant “under the theory that he was defending” her. As a
result of the complainant’s actions, Blackmore suffered a fracture to the center of
her nose, but surgery was not required. She had two black eyes, and she received
an X-ray and a CAT scan because she “had a knot on [her] head.” She did not
have any head injuries. Blackmore did not sustain any injuries that could not heal
on their own.
6
As to appellee’s trial counsel, Blackmore explained that she spoke to Frank
by telephone and sent him a written statement. He did not meet with her in person.
Frank requested that Blackmore send him her medical records, but she could not
send the records because she “had a pending federal charge” at the time and her
attorney “did not give [her] consent to release any medical information.”
Blackmore told Frank that she had received medical treatment on August 14, 2022
from her primary care physician. Frank asked Blackmore “to get a form filled out
to release [her] medical records,” but he did not have an investigator interview her.
She did not receive a bench warrant or subpoena to testify at appellee’s trial on
appellee’s behalf. If she had received a subpoena, she would have testified on
appellee’s behalf at trial. Blackmore noted that she was incarcerated for the
offense of “[m]isprision of a felony” from February 16, 2023 until two days before
appellee’s motion-for-new-trial hearing.
Frank testified that he represented appellee “in this murder case,” and after
being hired, he spoke with appellee several times before going with appellee to the
police station so that appellee could give a statement to law enforcement officers.7
While meeting with law enforcement officers, appellee told them that he had
acted in defense of a third person, i.e., Blackmore, because she had been attacked
7
Frank noted that appellee lived in Dallas, Texas and he lived in Houston, Texas, so
Frank did not meet appellee in person until the day he escorted appellee to the
police station. Frank also testified that he and appellee met at a restaurant prior to
going to the police station so that they could talk in person.
7
and the complainant had made threatening statements. Appellee also told law
enforcement officers that he feared for his own life.
As to his representation of appellee, Frank testified that he took notes during
his representation. He reviewed the evidence he received from the State and
viewed the videotaped recording of the offense about fifteen times. He also did
“voir dire preparation” and “preparation for cross [and] direct examination.” He
spoke to three eyewitnesses by telephone and had them prepare written statements.
He also spoke with “some people” who knew the complainant, and they described
their history with the complainant. One of the individuals that Frank spoke to told
him that her relationship with the complainant involved “some sort of domestic
violence,” and another person told Frank that “[s]he had firsthand knowledge that
[the complainant] was abusive.”8 Further, Frank showed appellee the videotaped
recording of the offense before appellee’s trial; he also discussed “[d]efense of a
third person” with appellee.
Frank noted that he did not hire an investigator to work on appellee’s case,
and he did not subpoena anyone to appear at appellee’s trial on appellee’s behalf.
Frank also did not subpoena Blackmore’s medical records or have a medical
professional testify for the defense about Blackmore’s injuries. Frank obtained a
photograph of Blackmore’s facial injuries, and he obtained a photograph of 8
Frank did not subpoena either of these witnesses to testify at trial on appellee’s
behalf.
8
Blackmore earlier in the evening so that he could show the difference in her
appearance. Frank did not subpoena Blackmore to appear at trial,9 but he
explained that it was not his strategy to have Blackmore testify because “the entire
incident was on video” and it “was going to be a matter for interpretation” as to
what had happened. Further, Frank had witnesses to testify that they were with
Blackmore on the night of the offense, and one of them had gone “to the hospital
with . . . Blackmore and could attest to the injuries that she had.” That witness had
a “clean background,” as did appellee. In contrast, Blackmore was “in federal
custody” and did not have a “clean background,” and Frank felt that her
background would “mudd[y] up” the trial and “there would be a level of prejudice
against her.”
Additionally, Frank testified that his voir dire examination of the potential
jury panel lasted about sixteen minutes. Although he did not discuss defense of a
third person during voir dire, that was because it had already been discussed with
the potential jurors. He did not discuss serious bodily injury or deadly force with
the potential jurors. During his opening statement to the jury, he addressed defense
of a third person.
As to the State’s “plea offers,” Frank testified that the State first offered
appellee about forty years’ confinement, and Frank “g[o]t them to go lower.” The 9
Frank noted that he had two other witnesses testify on appellee’s behalf during the
guilt phase of trial.
9
State’s last offer before trial was fifteen years’ confinement. Frank told appellee
that he should “seriously consider” the offer, and Frank “recommended that he take
the deal.” Frank did not advise appellee “to go to trial,” and he explained to
appellee that it was “a great deal.” Appellee did not accept the State’s offer. Frank
did tell appellee that he was ready to go to trial, which Frank believed at the time.
On cross-examination, regarding his representation of appellee, Frank
testified that his last visit with appellee before trial occurred the weekend before
trial when appellee was in custody.10 At that visit, he spoke with appellee about
the trial process, the evidence, and the law. Frank spoke to appellee about what
jury selection would be like, what appellee “could potentially expect” during trial,
and “what the actual trial process would be like.” To prepare appellee to testify at
trial, Frank told appellee that “sometimes he g[ot] a little excited and sometimes
he . . . g[o]t a little impatient as far as getting his point across but that he [should]
take his time” and he should “come across as empathetic and sympathetic.” Frank
told appellee that he should show that he had “respect for the [complainant],” but
he should emphasize the facts that leaned in his favor during his testimony.11
10
Frank later clarified that he visited appellee on the weekend after voir dire
examination had occurred, but before opening statements began. Frank spoke to
appellee at length “in the holdover” each day both before and after trial. He did
not visit appellee at the jail in the evenings during trial.
11
Frank stated that he did not believe that appellee followed his advice at trial. Prior
to trial, Frank told appellee not to post on social media about “how it was the
family’s fault that their loved one was dead,” and appellee did not follow that
10
Frank noted that appellee had been incarcerated out of state before trial and
was brought back only two or three weeks before trial began. After appellee’s
return, Frank met with appellee once before trial—the weekend before. However,
Frank also explained that there was a year where appellee was “on bond” and not
in custody, and during that time he spoke with appellee “[a]ll the time.” According
to Frank, he showed appellee the videotaped recording of the offense while
appellee was “on bond,” and he reviewed the evidence with appellee. Frank also
discussed his legal theories of the case with appellee.
Frank further testified that the reason he went with appellee to make a
statement to law enforcement was that he wanted appellee “to get in front of the
charge,” and Frank thought it would “make the self-defense claim look better.”
As to his performance during the guilt phase of trial, Frank explained that he
did not call Blackmore to testify on appellee’s behalf because Frank wanted to
emphasize that appellee was “a good guy,” “had a clean background,” and “had a
certification with his occupation,” whereas Blackmore was “a convicted felon who
started both fights by punching women.”12 The witnesses that Frank called to
testify on appellee’s behalf, who were with appellee on the night of the offense,
advice either. Appellee displayed a similar mindset when he testified at trial,
contrary to Frank’s advice.
12
Frank explained that prior convictions are often times used to impeach witnesses,
and he was concerned about that happening if he called Blackmore to testify at
trial. Frank thought that Blackmore’s criminal history would be held against
appellee.
11
had clean backgrounds. Frank believed that “their eyewitness account would be
strong enough so that the jury could understand what actually happened from their
perspective because [the trial] was a battle of two different sides. One side ha[d]
one perspective; the other side ha[d] a different perspective.” Frank also called
appellee to testify at trial because to get the jury instruction on defense of a third
person, either Blackmore or appellee needed to testify at trial.13 Frank thought it
was best to have appellee, instead of Blackmore, testify because he had a “very
limited criminal history.” It was “a tactical decision” not to have Blackmore
testify at trial.
Frank further testified that at the time of trial Blackmore was incarcerated in
a federal penitentiary, and he could not communicate with her at that time; he had
spoken to her before her incarceration. As to her medical records, he had tried to
get her medical records from her, and he had tried to get her to sign a release so
that he could access her medical records, but he was never able to get access to
Blackmore’s medical records, despite his efforts.
As to his voir dire examination of the potential jury panel, Frank explained
that he chose not to ask certain questions of the prospective jurors because the trial
court and the State had sufficiently covered some topics, including defense of a
third person, “the idea that the defendant [was] innocent until proven guilty,” “that 13
Frank noted that the trial court instructed the jury on defense of a third person
based on appellee’s testimony.
12
the evidence ha[d] to pull the jury to a point where they believe[d] that [the
defendant was] guilty beyond a reasonable doubt but at [the beginning] he started
from a level of zero[] when it c[ame] to guilt.” Frank felt like most of the
applicable legal principles were sufficiently covered by the time his voir dire
examination began. Frank did not believe that his sixteen-minute voir dire
examination harmed appellee, and his voir dire examination was “based on
deliberate, key, and tactical decisions.”
Frank testified that he had planned to hire an investigator for appellee’s case,
but appellee did not pay him enough for the investigator.14 Frank explained that he
spoke to the five witnesses at the scene who were with appellee at the time of the
offense. He did not attempt to speak with the complainant’s family members or
friends, who were at the scene with the complainant that night. Frank noted that he
spoke with two individuals who were familiar with the complainant, one of whom
was his ex-girlfriend. Those individuals made allegations that the complainant had
been violent with them, but Frank determined that the complainant had no criminal
convictions so there was no way for Frank to “get into those prior allegations of
family violence, legally, in this . . . case.” Thus, it would not have been a good
idea to call those individuals to testify at trial.
14
Frank testified that appellee was not indigent, and he was retained counsel.
13
Frank noted that he filed an election for the jury to assess punishment, which
the trial court granted, and the jury assessed punishment in appellee’s case.
As to the State’s “plea offers,” Frank testified that the State initially offered
forty years’ confinement in exchange for a guilty plea by appellee. Frank engaged
in discussions with the State in an attempt to get a lower offer for appellee. In the
end, the State offered appellee fifteen years’ confinement, which appellee turned
down. Frank explained that he had no control over whether appellee accepted the
State’s offer and pleaded guilty. Frank thought that appellee should have accepted
the State’s offer, but it was appellee’s decision.
Standard of Review
The trial court’s decision to grant or deny a motion for new trial is reviewed
for an abuse of discretion. Becerra v. State, 685 S.W.3d 120, 127 (Tex. Crim.
App. 2024). “[W]e do not substitute our judgment for that of the trial court; rather,
we decide whether the trial court’s decision was arbitrary or unreasonable.” Id.
An abuse of discretion occurs when “no reasonable view of the record could
support [the trial court’s] ruling.” Id. When deciding whether a trial court erred in
granting a new-trial motion, we view the evidence in the light most favorable to the
court’s ruling; give almost total deference to the court’s findings of historical fact;
and, if there are no findings, imply findings necessary to support the ruling if they
are reasonable and supported by the record. State v. Gutierrez, 541 S.W.3d 91, 98
14
(Tex. Crim. App. 2017). The trial court is the sole judge of the credibility of the
evidence proffered in support of a motion for new trial. Becerra, 685 S.W.3d at
127; see also Najar v. State, 618 S.W.3d 366, 372 (Tex. Crim. App. 2021) (holding
reviewing court applies “a uniformly deferential standard of review to a trial
court’s finding in ruling on a motion for new trial”).
A trial court generally does not abuse its discretion in granting a motion for
new trial if the defendant: (1) articulated a valid legal claim in his motion for new
trial, (2) produced evidence or pointed to evidence in the trial record that
substantiated his legal claim, and (3) showed prejudice to his substantial rights
under the standards in Texas Rule of Appellate Procedure 44.2. State v. Herndon,
215 S.W.3d 901, 909 (Tex. Crim. App. 2007). The trial court cannot grant a new
trial based on mere sympathy, an inarticulate hunch, “or simply because [it]
personally believe[d] that the defendant [was] innocent or ‘received a raw deal.’”
Id. at 907. “[T]he trial court does not have discretion to grant a new trial unless the
defendant shows that he is entitled to one under the law.” Id.
Ineffective Assistance of Counsel
In its sole issue, the State argues that the trial court erred in granting appellee
a new trial as to guilt because appellee’s motion asserted that he had received
ineffective assistance of counsel, but appellee failed to establish that Frank’s
purportedly deficient performance prejudiced him.
15
The Sixth Amendment to the United States Constitution guarantees the right
to the reasonably effective assistance of counsel in criminal prosecutions. U.S.
CONST. amend. VI; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001);
see also TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.05;
Hernandez v. State, 726 S.W.2d 53, 55–57 (Tex. Crim. App. 1986) (test for
ineffective assistance of counsel same under both federal and state constitutions).
To prove a claim of ineffective assistance of counsel, a defendant must show that
(1) his trial counsel’s performance fell below an objective standard of
reasonableness and (2) there is a reasonable probability that, but for his counsel’s
unprofessional errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); Lopez v. State, 343
S.W.3d 137, 142 (Tex. Crim. App. 2011).
“A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Strickland, 466 U.S. at 694. In reviewing counsel’s performance,
we look to the totality of the representation to determine the effectiveness of
counsel, indulging a strong presumption that counsel’s performance fell within the
wide range of reasonable professional assistance or trial strategy. See Robertson v.
State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006). A defendant has the
burden to establish both prongs of the Strickland test by a preponderance of the
evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). A
16
defendant’s “failure to satisfy one prong of the Strickland test negates a court’s
need to consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex.
Crim. App. 2009); see also Strickland, 466 U.S. at 697.
A. Blackmore’s Failure to Testify
In a portion of its sole issue, the State argues that the trial court erred in
granting appellee a new trial based on ineffective assistance of counsel because,
although appellee alleged that Frank erred in failing to “bench warrant and
call . . . Blackmore” to testify during the guilt phase of trial, appellee did not
establish that Blackmore’s testimony would have helped the defense.
A defendant is not entitled to a presumption of prejudice. See Lopez v. State,
358 S.W.3d 691, 696 (Tex. App.—San Antonio 2011, pet. ref’d). To obtain relief
on an ineffective-assistance-of-counsel complaint based on an uncalled witness, a
defendant must show that the witness was available to testify and that her
testimony would have been some benefit to the defense. See Ex parte White, 160
S.W.3d 46, 52 (Tex. Crim. App. 2004); Crawford v. State, 355 S.W.3d 193, 199
(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d); Pinkston v. State, 744 S.W.2d
329, 332 (Tex. App.—Houston [1st Dist.] 1988, no pet.) (“An attorney’s failure to
investigate or present witnesses will be a basis for establishing ineffective
assistance of counsel only where it is shown that the witnesses would have been
17
available and that the presentation of the evidence would have benefitted [the
defendant].”).
The State does not dispute that at the motion-for-new-trial hearing,
Blackmore testified that she would have been available to testify at trial on
appellee’s behalf. However, there is nothing in the record showing that her
testimony would have aided the defense during the guilt phase of trial.
Frank explained at the hearing on appellee’s motion for new trial, that
although Blackmore was at the scene when the offense occurred and was the “third
person” who appellee was purportedly defending when he shot the complainant,
Frank did not call Blackmore to testify because “the entire incident was on video”
and it “was going to be a matter for interpretation” for the jury as to what had
happened. Further, at the time of trial, Blackmore was “in federal custody,” had a
criminal history, and had started “fights by punching women,” which Frank
believed would have reflected poorly on appellee, who did not have a criminal
history. Thus, instead, Frank had witnesses, who were also present at the scene,
who had accompanied Blackmore to the hospital after the incident, and who had a
“clean background,” testify as to Blackmore’s injuries and provide their
“eyewitness account[s]” of what happened on the night of the offense.
Additionally, a photograph of Blackmore’s injuries was admitted into evidence
during the guilt phase of trial. And appellee testified at trial, which permitted the
18
trial court to submit an instruction on defense of a third person to the jury for
consideration. See, e.g., Sandoval v. State, No. 13-22-00237-CR, 2023 WL
6886106, at *6 (Tex. App.—Corpus Christi–Edinburg Oct. 19, 2023, no pet.)
(mem. op., not designated for publication) (defendant did not establish uncalled
witness’s testimony would have benefited the defense where “much of the same
information was testified to by” other witnesses); Crawford, 355 S.W.3d at 199
(defendant did not “identify any fact to which [the uncalled witness] would testify
that the trial court had not heard from another witness”); Tutt v. State, 940 S.W.2d
114, 121 (Tex. App.—Tyler 1996, pet. ref’d) (defendant’s trial counsel was not
ineffective for failing to call certain witnesses when their testimony would have
been cumulative of other testimony).
We conclude that appellee did not establish a reasonable probability that, but
for Frank’s purported unprofessional error in failing to “bench warrant and call”
Blackmore to testify during the guilt phase of the trial, the result of the proceeding
would have been different.
B. Failure to Obtain Blackmore’s Medical Records
In another portion of its sole issue, the State argues that the trial court erred
in granting appellee a new trial based on ineffective assistance of counsel because,
although appellee alleged that Frank erred in “not obtain[ing] the medical records
19
for . . . Blackmore,” appellee failed to establish that Frank’s purported error
“actually had an adverse effect on the defense.” (Internal quotations omitted.)
A copy of Blackmore’s medical records was not admitted into evidence at
the motion-for-new-trial hearing, and there is nothing in the record as to the
information Blackmore’s medical records would have contained. The appellate
record must affirmatively demonstrate the meritorious nature of a defendant’s
ineffective-assistance-of-counsel claim. See Menefield v. State, 363 S.W.3d 591,
592–93 (Tex. Crim. App. 2012); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005). Here, we cannot conclude that it does.
Further, Frank explained at the motion-for-new-trial hearing that he had
witnesses, including appellee, testify as to the injuries Blackmore sustained on the
night of the offense, and a photograph showing Blackmore’s injuries was admitted
into evidence. See Thomas v. State, No. 01-03-0116-CR, 2004 WL 2677176, at *3
(Tex. App.—Houston [1st Dist.] Nov. 24, 2004, pet. ref’d) (mem. op., not
designated for publication) (defendant failed to establish that counsel’s failure to
obtain medical records prejudiced him where, even if “medical records might have
enhanced [the] defense, [defendant] . . . [did not] establish[] that failure to obtain
the records precluded him from presenting a viable defense”); see also Hampton v.
State, No. 03-14-00111-CR, 2016 WL 806607, at *1–4 (Tex. App.—Austin Feb.
24, 2016, no pet.) (mem. op., not designated for publication) (concluding defendant
20
did not meet burden of providing that “there was a reasonable probability that the
admission of the [medical] records would have changed the outcome of his trial,”
where defendant testified to information contained in those records).
We conclude that appellee did not establish a reasonable probability that, but
for Frank’s purported unprofessional error in failing to obtain Blackmore’s medical
records, the result of the proceeding would have been different.
C. Voir Dire Examination
In another portion of its sole issue, the State argues that the trial court erred
in granting appellee a new trial based on ineffective assistance of counsel because,
although appellee alleged that Frank erred in “d[oing] a 16-minute voir dire of the
venire [panel] in th[e] murder case,” appellee failed to show that he was prejudiced
by his “trial counsel not using every available minute of voir dire.”
Appellee’s complaint, in his new-trial motion, as to Frank’s voir dire
examination of the potential jury panel focused on the length of the examination,
which presumably means that appellee believed that Frank should have asked more
questions of the potential jury panel. However, the Texas Court of Criminal
Appeals has held that a trial counsel’s “failure to ask any questions in voir dire
[does not] constitute[] conduct so outrageous that no competent attorney would
have engaged in it.” Goodspeed, 187 S.W.3d at 392–94.
21
At the hearing on appellee’s motion for new trial, Frank testified that during
his voir dire examination, he chose not to ask certain questions of the prospective
jurors because the trial court and the State had sufficiently covered certain topics,
including defense of a third person, “the idea that the defendant [was] innocent
until proven guilty,” and “that the evidence ha[d] to pull the jury to a point where
they believe[d] that [the defendant was] guilty beyond a reasonable doubt but at
[the beginning] he started from a level of zero[] when it c[ame] to guilt.” In other
words, Frank felt that most of the applicable legal principles had been sufficiently
covered by the time it was his turn to conduct his voir dire examination of the
prospective jurors. Frank did not believe that his sixteen-minute voir dire
examination harmed appellee, and his voir dire examination was “based on
deliberate, key, and tactical decisions.” See id. at 392–93 (it may be appropriate
trial strategy for defense counsel to avoid repeating State’s line of questioning
during voir dire); De La Cruz v. State, No. 11-15-00281-CR, 2017 WL 1275653, at
*3 (Tex. App.—Eastland Mar. 31, 2017, no pet.) (mem. op., not designated for
publication) (“[W]e cannot say that trial counsel’s decision not to retrace several
areas of questioning that the State had already covered was an unsound strategy
that no reasonable professional would have employed.”).
Further, we note that appellee did not identify any juror characteristics that
were missed by Frank because of his purportedly “short” sixteen-minute voir dire
22
examination. Cf. Armstrong v. State, 897 S.W.2d 361, 363–64 (Tex. Crim. App.
1995) (juror had undisclosed relationship with State’s attorney that should have
been uncovered by counsel during voir dire examination). And Frank actively
participated in the discussion with the trial court and the State about excusing
potential jurors for cause, and he exercised his peremptory strikes at trial. See,
e.g., Ray v. State, No. 12-10-00365-CR, 2012 WL 690317, at *3 (Tex. App.—
Tyler Feb. 29, 2012, no pet.) (mem. op., not designated for publication). Although
appellee asserted that Frank failed to conduct a “vigorous voir dire,” appellee did
not establish that he was prejudiced by Frank’s failure to ask a certain question 15 or
undertake a more comprehensive examination. See Ramirez v. State, Nos.
13-09-00073-CR, 13-09-00135-CR, 2010 WL 3420616, at *4 (Tex. App.—Corpus
Christi–Edinburg Aug. 31, 2010, pet. ref’d) (mem. op., not designated for
publication) (record did not show that had trial counsel objected to time limit
imposed by court on voir dire examination, this would have resulted in different
outcome); Hollis v. State, 219 S.W.3d 446, 462 (Tex. App.—Austin 2007, no pet.)
(defendant “failed to show (or even allege) that anything about his counsel’s voir
dire prejudiced the outcome of his case”).
We conclude that appellee did not establish a reasonable probability that, but
for Frank’s purported unprofessional error in conducting a sixteen-minute voir dire 15
Neither in his motion for new trial nor at the hearing on his motion did appellee
identify what a more “vigorous” voir dire examination would have revealed.
23
examination, the result of the proceeding would have been different. See
Goodspeed, 187 S.W.3d at 394 (holding defendant not prejudiced by trial
counsel’s failure to ask any questions during voir dire examination).
D. Failure to Meet with Appellee
Next, in a portion of its sole issue, the State argues that the trial court erred
in granting appellee a new trial based on ineffective assistance of counsel because,
although appellee alleged that Frank erred in “not meet[ing] with [appellee] to
prepare for trial,” appellee “did not show any concrete harm from [counsel’s]
alleged deficiency.”
The record indicates that after appellee was arrested, he spent a few days in
jail before he was released “on bond.” Appellee then remained out of custody for
about a year before his bond was revoked. Appellee testified at the hearing on his
motion for new trial that he spent about nine months in custody before his trial
after he violated the conditions of his bond.
It is true that “[a]dequate consultation between [an] attorney and [his] client
is an essential element of competent representation of a criminal defendant.”
Summerlin v. Schriro, 427 F.3d 623, 633 (9th Cir. 2005) (internal quotations
omitted). However, a limited number of meetings between a defendant and his
trial counsel before trial does not necessarily amount to inadequate consultation.
See Murray v. Maggio, 736 F.2d 279, 282–83 (5th Cir. 1984) (“[B]revity of
24
consultation time between a defendant and his counsel, alone, cannot support a
claim for ineffective assistance of counsel.”). “[N]o case establish[es] a minimum
number of meetings between [a defense] counsel and [his] client prior to trial [that
are] necessary to prepare an attorney to provide effective assistance of counsel.”
U.S. v. Olson, 846 F.2d 1103, 1108 (7th Cir. 1988) (internal quotations omitted).
At the hearing on appellee’s motion for new trial, appellee explained that he
met with Frank two days after the offense, at the police station, before appellee
was arrested, and Frank accompanied appellee to his noncustodial interview with
law enforcement officers. He also met with Frank in the courtroom whenever
appellee appeared in court. And appellee stated that when he was not in custody
for violating his bond conditions, he met with Frank at a restaurant and “[a]t a
building.” Frank also showed appellee the videotaped recording of the offense
before appellee’s trial.
Frank testified at the motion-for-new-trial hearing that because appellee
lived in Dallas and he lived in Houston, he did not meet appellee in person until the
day he escorted appellee to the police station so that appellee could give law
enforcement officers his statement. Before meeting in person though, Frank spoke
to appellee on the telephone several times, and he and appellee went to a restaurant
to talk in person before appellee gave his statement to law enforcement officers.
25
Frank also testified that while the case was pending and appellee was “on
bond,” he showed appellee the videotaped recording of the offense, and he
discussed “[d]efense of a third person” with appellee. Frank also discussed the
evidence with appellee and his legal theories of the case. During the year when
appellee was “on bond” and not in custody, Frank spoke with appellee “[a]ll the
time.”
Frank further testified that after appellee violated the conditions of his bond
and was placed in custody, appellee was incarcerated out of state before trial and
brought back only two or three weeks before trial began. Frank visited appellee
after he returned to Texas and before opening statements occurred in appellee’s
trial. At that visit, he spoke with appellee about the trial process, the evidence, and
the law. Frank also discussed what appellee “could potentially expect” during trial
and “what the actual trial process would be like.” To prepare appellee to testify at
trial, Frank told appellee that “sometimes he g[ot] a little excited and sometimes
he . . . g[o]t a little impatient as far as getting his point across but that he [should]
take his time” when testifying and he should “come across as empathetic and
sympathetic.” Frank also told appellee that he should show that he had “respect for
the [complainant],” but he should emphasize the facts that leaned in his favor
during his testimony.
26
Here, the record contains no evidence that appellee suffered any prejudice
by Frank’s alleged inadequacies in meeting with appellee before his trial. See, e.g.,
Collins v. State, No. 06-13-00214-CR, 2014 WL 2447599, at *7 (Tex. App.—
Texarkana May 30, 2014, pet. ref’d) (mem. op., not designated for publication);
Sledge v. State, No. 12-11-00026-CR, 2012 WL 3104392, at *7–8 (Tex. App.—
Tyler July 31, 2012, pet. ref’d) (mem. op., not designated for publication). We
conclude that appellee failed to establish a reasonable probability that, but for
Frank’s purported unprofessional error in failing to meet with appellee before trial,
the result of the proceeding would have been different.
E. Failure to Prepare Appellee to Testify
In another portion of its sole issue, the State argues that the trial court erred
in granting appellee a new trial based on ineffective assistance of counsel because,
although appellee alleged that Frank erred in not preparing him to testify during the
guilt phase of trial, appellee had not asserted that “there was anything he wanted to
testify to but was unable to for lack of preparation,” and appellee had not asserted
that there was “anything he would not have said on cross[-examination] if he had
been properly advised.”
To prevail on a claim of ineffective assistance of counsel for failing to
adequately prepare a defendant to testify, the defendant must demonstrate that the
alleged error caused him prejudice, i.e., that better preparation would have
27
benefited the defendant and led to a better result. Shamim v. State, 443 S.W.3d
316, 324–25 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).
At the hearing on his motion for new trial, appellee testified that he did not
believe that Frank had prepared him to testify at trial because he did not know
“how cross-examination would occur” or what his “obligations [were] when
someone asked [him] a question.” Further, according to appellee, before testifying,
he did not know what questions Frank would ask him on direct examination, and
he had no idea what the State would ask him on cross-examination. In appellee’s
opinion, if Frank had visited him while he was in custody, he would have better
known how to answer questions and follow the trial court’s instructions during his
testimony at trial.
The record does not show how additional trial preparation would have
benefited appellee or led to a better result at trial. See id.; see also Kerr v. State,
Nos. 02-20-00034-CR, 02-20-00035-CR, 2021 WL 3793817, at *5 (Tex. App.—
Fort Worth Aug. 26, 2021, no pet.) (mem. op., not designated for publication)
(defendant did not “show[] that additional preparation and communication between
him and his counsel before trial would have changed the trial’s outcome”). We
conclude that appellee failed to show a reasonable probability that, but for Frank’s
purported unprofessional error in failing to prepare appellee to testify for the guilt
phase of the trial, the result of the proceeding would have been different.
28
F. Failure to Hire Investigator16
In a portion of its sole issue, the State argues that the trial court erred in
granting appellee a new trial based on ineffective assistance of counsel because,
although appellee alleged that Frank erred in not hiring an investigator, appellee
“adduced no evidence of which investigator [Frank] should have hired, what that
investigator would have uncovered, or how that would have helped” appellee.
At the new-trial hearing, appellee testified that Frank told him that he would
hire an investigator to work on appellee’s case and appellee paid Frank cash to hire
an investigator. Appellee did not know if Frank ever hired an investigator.
Frank testified that he did not hire an investigator to work on appellee’s case
because appellee did not pay him enough money for an investigator to be hired.17
Instead, Frank conducted his own investigation into the facts of the case.
16
In his motion for new trial, appellee also complained that Frank failed to hire a
“mitigation expert.” Evidence relevant to mitigation of punishment is admissible
during the punishment phase at trial. See Eaves v. State, 141 S.W.3d 686, 693
(Tex. App.—Texarkana 2004, pet. ref’d). Thus, appellee’s assertion in his motion
for new trial that Frank provided him with ineffective assistance because Frank did
not hire a “mitigation expert” would have been grounds for the trial court to grant
a new trial on punishment. See, e.g., Lampkin v. State, 470 S.W.3d 876, 925–26
(Tex. App.—Texarkana 2015, pet. ref’d) (granting new trial on punishment only
where counsel did not investigate and present mitigating evidence during
punishment). Here, however, the trial court granted a new trial on guilt, so we
need not address any complaint by appellee about the lack of a “mitigation
expert,” which was relevant only to a potential new trial on punishment. See TEX.
R. APP. P. 47.1; see also id. 21.9(a) (“[A] court must grant only a new trial on
punishment when it has found a ground that affected only the assessment of
punishment.”).
17
Frank testified that appellee was not indigent, and he was retained counsel.
29
Defense counsel “has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” Strickland,
466 U.S. at 691. Nevertheless, a claim for ineffective assistance based on trial
counsel’s general failure to investigate the facts of the case fails absent a showing
of what the investigation would have revealed that reasonably could have changed
the result of the case. Stokes v. State, 298 S.W.3d 428, 432 (Tex. App.—Houston
[14th Dist.] 2009, pet. ref’d). “Ineffective assistance of counsel claims are not
built on retrospective speculation; they must be firmly founded in the record.”
Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002) (internal quotations
omitted).
Even assuming Frank’s failure to hire an investigator constituted deficient
performance, appellee did not establish what hiring an investigator would have
revealed or that the results of any additional investigation could have changed the
outcome of the case. Cf. Goss v. State, No. 14-22-00062-CR, 2024 WL 334209, at
*3 (Tex. App.—Houston [14th Dist.] Jan. 30, 2024, pet. ref’d) (mem. op., not
designated for publication); Cantu v. State, No. 14-13-00854-CR, 2014 WL
6968599, at *7–8 (Tex. App.—Houston [14th Dist.] Dec. 9, 2014, no pet.) (mem.
op., not designated for publication); see also Brumbalow v. State, No.
07-24-00085-CR, 2025 WL 1451829, at *4 (Tex. App.—Amarillo May 20, 2025,
pet. ref’d) (mem. op., not designated for publication) (“The record does not
30
demonstrate how counsel’s alleged failure to further investigate caused prejudice
to [defendant] beyond mere conjecture and speculation.”). We conclude that
appellee failed to show a reasonable probability that, but for Frank’s purported
unprofessional error in failing to hire an investigator, the result of the proceeding
would have been different.
G. Untimely Punishment Election
In another portion of its sole issue, the State argues that the trial court erred
in granting appellee a new trial based on ineffective assistance of counsel because,
although appellee alleged that Frank “did not file the election [as to punishment]
timely,” appellee was not prejudiced because the jury assessed his punishment, as
he requested.
If a finding of guilty is returned, it shall then be the responsibility of the trial
court to assess the punishment applicable to the offense. TEX. CODE CRIM. PROC.
ANN. art. 37.07, § 2(b). However, if a defendant elects in writing before the
commencement of the voir dire examination of the jury panel, he may have the
same jury that assessed his guilt also assess his punishment. Id.; Ex parte Pete,
517 S.W.3d 825, 831 (Tex. Crim. App. 2017) (“The default under this provision is
judge-assessed punishment, but a defendant may obtain jury punishment, at his
option, ‘where [he] so elects in writing before the commencement of the voir dire
examination of the jury panel . . . .’” (first alteration in original) (quoting TEX.
31
CODE CRIM. PROC. ANN. art. 37.07, § 2(b))). To preserve the right to have the
same jury decide both the defendant’s guilt and his punishment, the defendant must
comply with the statutory requirement that he make his written election before the
commencement of the voir dire examination of the jury panel. State v. Valle, No.
01-22-00279-CR, 2023 WL 5436435, at *6 (Tex. App.—Houston [1st Dist.] Aug.
24, 2023), rev’d on other grounds, State v. Valle, No. PD-0653-23, 2024 WL
178074 (Tex. Crim. App. Jan. 17, 2024) (not designated for publication).
It is undisputed that Frank did not file appellee’s election to have the jury
assess his punishment until after voir dire was complete. However, it is also
undisputed that the same jury that assessed appellee’s guilt also assessed his
punishment despite the late-filed election. We conclude that appellee failed to
show a reasonable probability that, but for Frank’s purported unprofessional error
in failing to timely file appellee’s election to have the jury assess his punishment,
the result of the proceeding would have been different. Cf. Ross v. State, 180
S.W.3d 172, 175–77 (Tex. App.—Tyler 2005, pet. ref’d) (even where defendant’s
counsel failed to file election to have jury assess punishment, defendant did not
show that, but for counsel’s unprofessional error, result of proceeding would have
been different).
32
H. On-Scene Witnesses
Additionally, in a portion of its sole issue, the State argues that the trial court
erred in granting appellee a new trial based on ineffective assistance of counsel
because, although appellee alleged that Frank “failed to interview all on-scene
witnesses,” “[n]othing in . . . appellee’s motion or the evidence presented at the
hearing show[ed] what favorable evidence [Frank] would have found had he
interviewed more people.”
A defendant in a criminal case is entitled to reasonably effective assistance
of counsel, including investigation of the defendant’s case. Strickland, 466 U.S. at
690–91. Trial counsel’s duty to investigate includes seeking out and interviewing
potential witnesses. Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986).
However, as previously noted, to obtain relief on an
ineffective-assistance-of-counsel complaint based on uncalled witnesses, a
defendant must show that the witnesses were available to testify and that their
testimony would have been some benefit to the defense. See Ex parte White, 160
S.W.3d at 52; Crawford, 355 S.W.3d at 199; Pinkston, 744 S.W.2d at 332 (“An
attorney’s failure to investigate or present witnesses will be a basis for establishing
ineffective assistance of counsel only where it is shown that the witnesses would
have been available and that the presentation of the evidence would have
benefitted [the defendant].”).
33
Appellee, in his motion for new trial and at the hearing, did not identify what
“on-scene witnesses” Frank should have interviewed or what those witnesses
would have testified about. Further, there is no evidence in the record that the
unidentified “on-scene witnesses” would have been available to testify or that their
testimony would have been some benefit to the defense. See Tutt v. State, 339
S.W.3d 166, 171 (Tex. App.—Texarkana 2011, pet. ref’d) (“We will not presume
witnesses were available and would have benefitted the defense.”). And nothing in
the record indicates that Frank’s purported deficiency in failing to interview
“on-scene” witnesses prejudiced appellee.
We conclude that appellee did not establish a reasonable probability that, but
for Frank’s purported unprofessional error in failing to interview “all on-scene
witnesses,” the result of the proceeding would have been different.
I. Other Bases
In the final portion of its sole issue, the State argues that the trial court erred
in granting appellee a new trial based on ineffective assistance of counsel, to the
extent that it did so relying on ineffective-assistance-of-counsel complaints that
appellee raised at the new-trial hearing, but not in his original motion, because the
State objected to appellee’s untimely amendment.
Texas Rule of Appellate Procedure 21.4 states that a defendant must file a
motion for new trial within thirty days after the trial court imposes a sentence,
34
specifically raising any grounds he wishes to be considered, and any amendments
to the original motion raising new grounds must also be filed within that same time
period. TEX R. APP. P. 21.4; State v. Frias, 511 S.W.3d 797, 807–08 (Tex. App.—
El Paso 2016, pet. ref’d). Courts have noted that the defendant must specifically
identify the bases of his claims in a motion for new trial to give the “[trial] court
enough notice to prepare for the hearing and make informed rulings and to allow
the State enough information to prepare a rebutting argument.” State v. Zalman,
400 S.W.3d 590, 593–94 (Tex. Crim. App. 2013). Although the failure to file a
motion for new trial within thirty days deprives the trial court of jurisdiction to
hear the motion, there is no jurisdictional bar to hearing a late-filed amendment to
an otherwise timely-filed motion; therefore, a trial court is only barred from
considering new issues in an untimely-filed amendment if the State objects to
hearing those new issues. State v. Moore, 225 S.W.3d 556, 557 (Tex. Crim. App.
2007). A trial court errs when it grants a motion for new trial based on matters
raised for the first time in an untimely amendment when the State has objected.
See Frias, 511 S.W.3d at 808.
In his motion for new trial, appellee argued that he was entitled to a new trial
on guilt because Frank did not provide him with effective assistance of counsel.
Specifically, appellee asserted that Frank was ineffective during the guilt phase of
trial because he did not “bench warrant and call . . . Blackmore,” the person
35
appellee was “protecting,” for trial; “did not obtain the medical records
for . . . Blackmore”; conducted “a 16-minute voir dire of the venire [panel] in th[e]
murder case”; “did not meet with [appellee] to prepare for trial”; “did not hire a
mitigation expert”; “did not hire[] an investigator to investigate the facts of the
case”; “did not file the election [as to punishment] timely”; and “failed to interview
all on-scene witnesses.” The State asserts that, to the extent that appellee raised
other ineffective-assistance-of-counsel complaints at the hearing on his motion for
new trial, beyond what was raised in his motion, the trial court erred in granting
appellee a new trial on such bases.
Appellee filed his motion for new trial on May 7, 2024. The trial court held
a hearing on appellee’s motion on June 14 and 17, 2024.18 Also, on June 17, 2024,
the State filed its objection “to the trial court granting [appellee’s] motion on any
basis other than that set forth in [appellee’s] timely written and filed motion for
new trial,” including any “purported oral amendments . . . made during the hearing
for new trial.” See Cueva v. State, 339 S.W.3d 839, 859 (Tex. App.—Corpus
Christi–Edinburg 2011, pet. ref’d) (State, by objecting, may “insist that the trial
court rule only upon the timely motion for new trial as originally filed or timely
amended, but not as untimely amended”). The trial court signed its order granting
appellee a new trial as to guilt on June 25, 2024.
18
The hearing on appellee’s motion for new trial occurred outside the allotted
thirty-day time period for amendment of appellee’s motion.
36
Appellee argues that the State’s objection was not timely filed, and the trial
court was allowed to consider his oral amendments to his motion, because, at the
conclusion of the motion-for-new-trial hearing, the trial court orally granted
appellee’s motion, and the State did not file its objection until after the hearing.
However, “[t]he granting of a motion for new trial must be accomplished by
written order.” TEX. R. APP. P. 21.8(b). A trial court’s oral pronouncement does
not constitute an order granting a motion for new trial. See State v. Guerra, Nos.
05-25-00749-CR, 05-25-00750-CR, 2025 WL 2494741, at *1 (Tex. App.—Dallas
Aug. 29, 2025, pet. ref’d) (mem. op., not designated for publication); see also
Scoggins v. State, No. 02-19-00209-CR, 2020 WL 5241197, at *1 n.2 (Tex.
App.—Fort Worth Sept. 3, 2020, pet. ref’d) (mem. op., not designated for
publication) (written order on motion for new trial always required).
Here, the trial court signed its order granting appellee’s motion for new trial
on June 25, 2024, making the State’s June 17, 2024 objection timely filed.
Thus, to the extent that the trial court granted appellee a new trial on guilt
based on ineffective-assistance-of-counsel complaints that were not raised in his
original written motion for new trial, we conclude that the trial court erred. See,
e.g., Frias, 511 S.W.3d at 809 (holding trial court erred to extent it granted
defendant relief on new arguments raised at new-trial hearing); Cueva, 339 S.W.3d
at 858–59.
37
***
In sum, we hold that the trial court erred in granting appellee a new trial on
guilt based on appellee’s claim of ineffective assistance of counsel.
We sustain the State’s sole issue.
Conclusion
We reverse the trial court’s order granting a new trial and remand the cause
to the trial court with instructions to reinstate the judgment of conviction and
sentence.
Kristin Guiney
Justice
Panel consists of Chief Justice Adams and Justices Guerra and Guiney.
Do not publish. TEX. R. APP. P. 47.2(b).
38