Stephen Dewayne Watkins v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00040-CR

STEPHEN DEWAYNE WATKINS,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 19th District Court
McLennan County, Texas
Trial Court No. 2019-1041-C1

MEMORANDUM OPINION

Stephen Dewayne Watkins waived his right to trial by jury and pleaded guilty to

the offenses of assault family violence by occlusion with a prior conviction for assault

family violence, a second-degree felony, and assault family violence with a prior

conviction for assault family violence, a third-degree felony. See generally TEX. PENAL

CODE ANN. § 22.01. The trial court received the pleas of guilty and assessed Watkins’s

punishment at twenty years and ten years, respectively, in the penitentiary. The trial
court sentenced Watkins accordingly and ordered the sentences to run concurrently. This

appeal ensued.

Background

In the original indictment filed on July 17, 2019, the State alleged that Watkins

intentionally, knowingly, and recklessly cause[d] bodily injury to . . . the
complainant, a person with whom the Defendant has or has had a dating
relationship, . . . by intentionally, knowingly, and recklessly impeding the
normal breathing or circulation of the blood of the complainant by applying
pressure to the throat or neck of the complainant, and before the
commission of the offense, the Defendant had previously been convicted of
an offense under Chapter 22 of the Texas Penal Code, against a member of
the Defendant’s family.

The original indictment alleged that the date of the offense was on or about April 3, 2019.

On December 15, 2022, the State filed a superseding indictment alleging that, on

or about April 3, 2019, Watkins

intentionally, knowingly, and recklessly cause[d] bodily injury to . . . the
complainant, a member of the Defendant’s household or a person with
whom the Defendant has or has had a dating relationship, . . . by
intentionally, knowingly, and recklessly impeding the normal breathing or
circulation of the blood of the complainant by applying pressure to the
throat or neck of the complainant, and before the commission of the offense,
the Defendant had previously been convicted of an offense under Chapter
22 of the Texas Penal Code, against a member of the Defendant’s family.

The superseding indictment also alleged, in an additional count, that, on or about April

3, 2019, Watkins

intentionally, knowingly, and recklessly cause[d] bodily injury to [the
complainant], a member of the Defendant’s household or a person with
whom the Defendant has or has had a dating relationship, . . . by grabbing
her throat and/or neck, and before the commission of the charged offense,
Watkins v. State Page 2
the Defendant had previously been convicted of an offense under Chapter
22 of the Texas Penal Code, against a member of the Defendant’s family.

Trial counsel did not move to dismiss or quash either count of the superseding

indictment. The case proceeded to trial, but after voir dire Watkins decided to plead

guilty and waive a jury trial.

Issue

In his sole issue, Watkins contends that his trial counsel was ineffective for failing

to move to dismiss or quash the State’s superseding indictment because there was no

language in the superseding indictment tolling the statute of limitations for the charged

offenses and because the superseding indictment alleged additional conduct not alleged

in the original indictment.

AUTHORITY

To prevail on an ineffective-assistance-of-counsel claim, the two-pronged test

established by Strickland v. Washington must be met. Wiggins v. Smith, 539 U.S. 510, 521,

123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003) (citing Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). Under Strickland, Watkins must prove

by a preponderance of the evidence that (1) counsel’s performance was deficient and (2)

the defense was prejudiced by counsel’s deficient performance. Strickland, 466 U.S. at

687, 104 S.Ct. at 2064; Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Absent

both showings, an appellate court cannot conclude that the conviction resulted from a

Watkins v. State Page 3
breakdown in the adversarial process that renders the result unreliable. Thompson v.

State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

To establish deficiency under the first prong of Strickland, it must be proven by a

preponderance of the evidence that defense counsel’s representation objectively fell

below the standard of professional norms. Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim.

App. 2009). To show prejudice, it must be shown that there is a reasonable probability

that, but for defense counsel’s unprofessional errors, the result of the proceeding would

have been different. Id. A “reasonable probability” is a probability sufficient to

undermine confidence in the outcome, meaning counsel’s errors were so serious as to

deprive the defendant of a fair trial with a reliable result. Id.

Our review of counsel’s representation is highly deferential, and we will find

ineffective assistance only if the strong presumption that defense counsel’s conduct fell

within the range of reasonable professional assistance is overcome. See Strickland, 466

U.S. at 689, 104 S.Ct. at 2065; see also Stafford v. State, 813 S.W.2d 503, 508–09 (Tex. Crim.

App. 1991). The right to “reasonably effective assistance of counsel” does not guarantee

errorless counsel whose competency is judged by perfect hindsight. Saylor v. State, 660

S.W.2d 822, 824 (Tex. Crim. App. 1983) (per curiam). “Isolated instances in the record

reflecting errors of commission or omission do not cause counsel to become ineffective,

nor can ineffective assistance of counsel be established by isolating or separating out one

Watkins v. State Page 4
portion of the trial counsel’s performance for examination.” Ex parte Welborn, 785 S.W.2d

391, 393 (Tex. Crim. App. 1990).

Trial counsel should ordinarily be afforded an opportunity to explain his actions

before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.

App. 2003). When the record is silent regarding the reasons for counsel’s conduct, a

finding that counsel was ineffective requires impermissible speculation by the appellate

court. See Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.).

Therefore, absent specific explanations for counsel’s decisions, a record on direct appeal

will rarely contain sufficient information to evaluate or decide an ineffective-assistance-

of-counsel claim. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To warrant

reversal without affording counsel an opportunity to explain his actions, “the challenged

conduct must be ‘so outrageous that no competent attorney would have engaged in it.’”

Roberts v. State, 220 S.W.3d 521, 533–34 (Tex. Crim. App. 2007) (quoting Goodspeed v. State,

187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).

The Court of Criminal Appeals recently stated the following:

The Code of Criminal Procedure requires an indictment to indicate,
on its face, that the prosecution is not barred by the applicable statute of
limitations. Mercier v. State, 322 S.W.3d 258, 263 (Tex. Crim. App. 2010);
TEX. CODE CRIM. PROC. ANN. art. 21.02(6). However, the Code provides that
“[t]he time during the pendency of an indictment, information, or
complaint shall not be computed in the period of limitation.” TEX. CODE
CRIM. PROC. ANN. art. 12.05(b).

Although Article 12.05(b) says “an indictment,” in Hernandez v. State,
we concluded that not just any indictment will toll the statute of limitations.
Watkins v. State Page 5
127 S.W.3d 768, 772 (Tex. Crim. App. 2004). Otherwise, “a person could be
continually indicted for any offense that the State felt inclined to charge
once an initial indictment [is] filed.” Id. This would defeat one of the
purposes of a statute of limitations, which is to require the State to exercise
due diligence in obtaining and presenting a formal accusation against a
person. Id.

Instead, we held that “a prior indictment tolls the statute of
limitations . . . for a subsequent indictment when both indictments allege
the same conduct, same act, or same transaction.” Id. at 774. “A subsequent
indictment is barred by the statute of limitations if it broadens or
substantially amends the charges in the original indictment.” Id. at 773.

A number of factors led us to this conclusion, including the
fundamental requirement that an indictment must give a defendant
adequate notice to prepare a defense. Id. at 772; see also State v. Moff, 154
S.W.3d 599, 603 (Tex. Crim. App. 2004). Additionally, we noted that the
United States Supreme Court recognized several purposes for a statute of
limitations, one of which is to protect defendants from having to defend
against charges that are brought when the basic facts have been obscured
by the passage of time. Hernandez, 127 S.W.3d at 772 (quoting Toussie v.
United States, 397 U.S. 112, 114–15, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970)). To
ensure that the defendant can preserve those facts that are essential to his
defense, the defendant must be given adequate notice of a charge. Id.
“Allowing the prior indictment to toll the statute of limitations would not
defeat the purposes of the statute of limitations if the prior indictment gives
adequate notice of the substance of the subsequent indictment.” Id.

State v. West, 632 S.W.3d 908, 910–11 (Tex. Crim. App. 2021) (footnote omitted).

DISCUSSION

It is undisputed here that a three-year limitations period applies to the offenses

alleged in this case, that the superseding indictment was filed more than three years after

the alleged offenses were committed, and that the superseding indictment did not contain

tolling language. See TEX. CODE CRIM. PROC. ANN. art. 12.01(9). However, we cannot

Watkins v. State Page 6
conclude on this record that Watkins’s trial counsel was ineffective for failing to move to

dismiss or quash the State’s superseding indictment.

As to count one, the language used in the superseding indictment tracked the

language used in the original indictment, except to add language describing the

complainant’s relationship with Watkins as being a member of Watkins’s household, in

addition to alleging that Watkins and the complainant “ha[ve] or ha[ve] had a dating

relationship.” The original indictment and the superseding indictment alleged the same

offense of causing bodily injury by applying pressure to the throat or neck of the same

complainant. Additionally, count one in the original indictment and the superseding

indictment required proof that Watkins committed assault family violence by occlusion

and that Watkins had been convicted previously of assault family violence. Although the

proof involved in identifying the relationship between Watkins and the complainant may

have differed slightly, every other element required the same proof. Thus, we conclude

that the original indictment gave adequate notice to Watkins to prepare a defense. See

West, 632 S.W.3d at 911; Childress v. State, 285 S.W.3d 544, 552 (Tex. App.—Waco 2009,

pet. ref’d) (“[T]he conduct that the actor needs notice of is the assault, not the status of

the actor’s relationship to the victim. It is not a crime to be in a dating relationship, and

[the appellant]’s conduct would have been criminal had he poured the gasoline on a

stranger.”). And we cannot say that count one of the superseding indictment broadened

or substantially amended the offense alleged in the original indictment such that count

Watkins v. State Page 7
one in the superseding indictment is barred by limitations. See Hernandez, 127 S.W.3d at

772.

Watkins further contends that the superseding indictment, filed on December 15,

2022, on its face was barred by limitations. Watkins cites Ex parte Alvear to support his

contention. See 524 S.W.3d 261, 262 (Tex. App.—Waco 2016, no pet.). Watkins argues

that a charging instrument that contains no tolling language and instead shows on its face

that prosecution is absolutely barred by the statute of limitations is not reparable.

However, in Alvear the issue of non-reparability of the charging instrument was only

determined to be a required prerequisite before a defendant could seek relief from further

prosecution via a pretrial writ of habeas corpus. Id. at 265.

Watkins also contends that West requires a finding that the lack of tolling language

in the superseding indictment renders count one barred by limitations. We do not find

West applicable here because the allegation in count one of the superseding indictment

did not allege a separate and discrete offense from the original indictment or alternative

manner and means for the commission of the charged offense.

We conclude that article 12.05(b) of the Texas Code of Criminal Procedure tolled

the limitations period during the pendency of the prior indictment as to count one. See

TEX. CODE CRIM. PROC. ANN. art. 12.05(b); see also Hernandez, 127 S.W.3d at 774. Thus, we

cannot conclude that a motion to dismiss or quash would have been successful.

Therefore, Watkins has not met his burden to demonstrate, by a preponderance of the

Watkins v. State Page 8
evidence, that his trial counsel was deficient with respect to count one, and we will not

address the prejudice prong of Strickland as to count one.

Additionally, with regard to count two, we cannot conclude that Watkins has met

his burden of showing that his trial counsel was ineffective. The record is completely

silent as to his trial counsel’s reason for not moving to dismiss or quash count two in the

superseding indictment. Ordinarily, trial counsel must be afforded the opportunity to

explain his actions before being denounced as ineffective. See Rylander, 101 S.W.3d at 111.

Furthermore, when the record is silent regarding the reasons for counsel’s conduct, a

finding that counsel was ineffective requires impermissible speculation by the appellate

court. See Gamble, 916 S.W.2d at 93. Thus, absent specific explanations for counsel’s

decisions, a record on direct appeal will rarely contain sufficient information to evaluate

or decide an ineffective-assistance-of-counsel claim. See Bone, 77 S.W.3d at 833. And

because the record on direct appeal is rarely sufficient to decide an ineffective-assistance-

of-counsel claim, “an application for a writ of habeas corpus is the more appropriate

vehicle to raise ineffective assistance of counsel claims.” Rylander, 101 S.W.3d at 110.

Despite the silence of the record, Watkins asserts that trial counsel’s failure to file

a motion to dismiss or quash count two in the superseding indictment on limitations

grounds was so outrageous that no competent attorney would have engaged in it. See

Roberts, 220 S.W.3d at 533–34; see also Goodspeed, 187 S.W.3d at 392. Watkins cites Compton

v. State to support his contention. See 202 S.W.3d 416, 421–22 (Tex. App.—Tyler 2006, no

Watkins v. State Page 9
pet.). However, Compton is distinguishable from the case before us because, unlike

Compton, this case did not proceed to a jury trial. See id. at 418. After voir dire, Watkins

elected not to contest the charges and to plead guilty to both counts. The plea papers in

our record contain a “Waiver of Jury Trial and Other Rights, Acknowledgements and

Plea” for each count. In the waiver documents, Watkins waived the following rights: (1)

to be silent, (2) to have the proceedings recorded by a court reporter, (3) to have ten days

to prepare for trial following the appointment of counsel, (4) to have a jury trial, (5) to

confront and cross-examine witnesses against him, and (6) to have a pre-sentence

investigation report. The waiver documents also reflect Watkins’s guilty pleas to both

counts, trial counsel’s affirmation that Watkins was competent and fully understood the

admonishments and consequences of his pleas, the trial court’s conclusion that Watkins

was competent and had been admonished and understood the consequences of his pleas,

and the trial court’s approval of the waivers. The waiver documents are silent as to any

potential last-minute agreements that may or may not exist between the State and

Watkins, which could explain trial counsel’s actions.

In Compton, on the other hand, trial counsel’s poor performance during trial served

as evidence of counsel’s error and the undeniable prejudice to Compton. See id. at 422–

23. Here, given the absence of evidence regarding trial counsel’s reason for not moving

to dismiss or quash count two in the superseding indictment, we cannot conclude that

Watkins v. State Page 10
the record in this case demonstrates the ineffectiveness of trial counsel as clear as

Compton.

Based on the foregoing, we cannot conclude on this record that Watkins’s trial

counsel was ineffective. Thus, we overrule Watkins’s sole issue on appeal.

Conclusion

We affirm the judgments of the trial court.

MATT JOHNSON
Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
(Chief Justice Gray concurs.)
Affirmed
Opinion delivered and filed November 30, 2023
Do not publish
[CR25]

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