Nolan v. State

1

SHANNON ANNETTE NOLAN, APPELLANT v. THE STATE OF TEXAS, APPELLEE

No. 07-22-00142-CR

Court of Appeals of Texas, Seventh District, Amarillo

August 24, 2023

Do not publish.

On Appeal from the 181st District Court Randall County, Texas Trial Court No. 30505B Honorable Titiana Frausto, Presiding.

Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

MEMORANDUM OPINION

Lawrence M. Doss, Justice.

After Appellant Shannon Annette Nolen pleaded guilty to the charge of intoxication assault with a vehicle, a jury assessed punishment at eight years of confinement in prison and a fine of $5,000. Appellant challenges her sentence through four issues. We affirm.

Background

This is a length of sentence case. Appellant's guilt is not in dispute. Appellant's complaint on appeal is replete with argument regarding what evidence should not have been considered and what should have been presented. However, no such discussion would be relevant without an initial statement of the undisputed foundational principles and evidence that undergird this case.

First the legal foundation: This case involves Appellant committing intoxication assault with her car. In violation of section 49.07 of the Texas Penal Code, Appellant operated a motor vehicle in a public place, and, "by reason of that intoxication cause[d] serious bodily injury to another." Id. Because this crime is a third-degree felony, the statutory range for Appellant's imprisonment is between two and ten years, as well as a potential fine not to exceed $10,000. TEX. PENAL CODE ANN. § 12.34(a),(b). The jury rejected Appellant's request for community supervision and assessed an eight-year prison sentence and a $5,000 fine - both within the statutorily-prescribed range of punishment.

Second, the evidentiary foundation: At night, on February 5, 2020, Appellant, while intoxicated,^[1] drove her vehicle on Interstate Highway 27 from Tulia, Texas, toward Amarillo. Appellant drove north on the southbound side of the highway, i.e., into the flow of traffic. A state trooper who discovered Appellant was driving on the wrong side of the road activated his lights and siren, turned around, and sped to catch up, but Appellant kept driving; she did not hit her brakes. Appellant continued to drive into oncoming traffic until she collided with two vehicles.^[2] Her speedometer indicated Appellant was driving 76 miles-per-hour at the time she crashed. There is no evidence Appellant took evasive measures to avoid a collision.

Appellant's car crashed into a pickup, which overturned; another truck lost its rear axle and collided with the highway's median barrier. Officers shut down the highway so emergency vehicles, including a helicopter, could assist. Emergency personnel used the jaws of life to remove Appellant and a passenger, her brother Geoffry, from the vehicle. He suffered serious injuries; passengers of the other vehicles testified about how their life was profoundly changed by Appellant's acts.

In August 2020, a Randall County indictment charged Appellant with intoxication assault with a motor vehicle. Appellant entered an open plea of guilty and punishment was tried by jury. The State presented evidence regarding Appellant's intoxication, the collision, and other acts by Appellant. This included evidence that at the time of her decision to drive while intoxicated, Appellant was already under an order of community supervision in Parker County for criminal mischief because she, intoxicated and in the back of a police cruiser, became angry and damaged the vehicle. The State also presented evidence of when Appellant, as a teacher at a nearby high school, had an ongoing personal and sexual relationship with a high school student; alcohol was used throughout. This conduct cost Appellant her job and educator's certificate, but she was not charged criminally.

As a part of her trial strategy to seek a probated sentence, Appellant presented the testimony of a former probation officer, who explained the mechanics of probation. The jury also heard from Appellant, her husband, father, current employer, and a minister who counsels Appellant and her husband.

The jury assessed, and the trial court imposed, the previously noted sentence. The judgment contains a deadly weapon finding consistent with the verdict.

Analysis

Second Issue: Did Appellant's trial counsel render ineffective assistance?

We begin with Appellant's second issue, wherein she contends her trial counsel's performance deprived her of the right to effective representation guaranteed by the Sixth Amendment to the United States Constitution. Specifically, Appellant argues her attorney was ineffective for failing to conduct discovery, investigate her mental health history, challenge the State's expert who proffered testimony about Appellant's level of intoxication, and interview and call other witnesses in Appellant's defense; and that counsel suffered from a conflict of interest. We overrule her issue for the reasons explained below.

Before she can prevail on a claim that she was deprived of a right to effective counsel, Appellant must satisfy both prongs of a bipartite test. Strickland v. Washington, 66 U.S 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). First, Appellant must prove that her counsel's conduct was objectively deficient. Pate v. State, No. 07-15-00397-CR, 2017 Tex.App. LEXIS 8447, at *13 (Tex. App.-Amarillo Sept. 6, 2017, pet. ref'd) (citing Ex parte Nailor, 149 S.W.3d 125 (Tex. Crim. App. 2004)). It is not enough to say with the benefit of hindsight that a different strategy might have been more effective or that another attorney would have handled the case a different way; Appellant must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687-89. "[A]n act or omission that is unprofessional in one case may be sound or even brilliant in another." Ex parte Chandler, 182 S.W.3d 350, 354 (Tex. Crim. App. 2005). Appellant's trial counsel was not given an opportunity to explain his decisions, so we assess the first prong with a "strong presumption" that counsel's actions are "the result of reasonable strategy." Hart v. State, 667 S.W.3d 774, 781 (Tex. Crim. App. 2023).

For the second prong, Appellant must prove counsel's deficient performance prejudiced her defense. Pate, 2017 Tex.App. LEXIS 8447, at *13. She must establish "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (citation omitted). Because this appeal only involves error allegedly committed at the punishment phase of trial, Appellant must demonstrate "a reasonable probability that, but for counsel's errors, the sentencing jury would have reached a more favorable verdict." Pham v. State, 639 S.W.3d 708, 713 (Tex. Crim. App. 2022) (citing Ex parte Rogers, 369 S.W.3d 858, 863 (Tex. Crim. App. 2012)).

In this case, Appellant argues at length about her trial attorney's decisions she contends were deficient. Counsel has not had an opportunity to explain his trial decisions, and Appellant has not overcome the presumption that counsel's decisions were the result of reasonable strategy. Based on the current record, we cannot fault counsel for not pursuing the paths Appellant complains of. See Hart, 667 S.W.3d at 784.

Moreover, we note that Appellant presents nothing more than a conclusory statement she would have received a more lenient sentence had additional mitigating evidence been introduced. As the U.S. Supreme Court wrote in Strickland:

It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.

Strickland, 466 U.S. at 693. The only practical difference between Appellant's argument and that which is insufficient under the Strickland standard is use of the phrase "reasonably probable" in place of "conceivable." This semantic difference is without merit. See Ex parte West, No. WR-78,439-02, 2016 Tex.Crim.App. Unpub. LEXIS 462, at *16 (Tex. Crim. App. June 8, 2016); Ex parte Cash, 178 S.W.3d 816, 818-19 (Tex. Crim. App. 2005) (rejecting ineffective assistance claim because defendant failed to demonstrate beyond conjecture and speculation that the sentencing jury would have reached a more favorable verdict).

Appellant's second issue is overruled.

First Issue: Was the trial court obligated to hold a hearing to receive evidence of Appellant's ineffective assistance claim?

We next consider Appellant's first issue, in which she complains that the trial court erred by failing to conduct a hearing of her motion for new trial.^[3] As with her second issue, Appellant's argument is that deficient performance by her attorney deprived her of the right to effective counsel. Here, she argues the trial court was required to provide an opportunity to develop and present this evidence in a hearing on the motion for new trial.

We overrule Appellant's issue. In 2009, the Court of Criminal Appeals held that before a trial court becomes obligated to set for hearing a motion for new trial pertaining to alleged ineffective assistance of counsel, the motion and supporting materials must establish that appellant could prevail under both Strickland prongs:

Before he will be entitled to a hearing on his motion for new trial alleging ineffective assistance of counsel, a defendant must allege sufficient facts from which a trial court could reasonably

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