JACKSON, LARRY DEWITT JR. v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0451-24

LARRY DEWITT JACKSON, JR., Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
WASHINGTON COUNTY

Schenck, P.J., filed a concurring opinion.

CONCURRING OPINION

The facts that we know of this case are deeply troubling, and I echo Judge

Finley’s disgust. However, I join the Court in dismissing Appellant’s petition for

discretionary review as improvidently granted. I, like others on this Court, believe
JACKSON CONCURRENCE – 2

outstanding factual questions remain to be answered before we can make a final

determination relative to counsel’s possible rationale here. 1

It is true that ineffective-counsel claims can be raised on direct appeal and that

a defendant is even rarely able to prove he is entitled to relief on what is usually a

record devoid of any significant fact finding about his claim. 2 But we have also

repeatedly emphasized that the record is seldom sufficiently developed. 3 And, even

if there is relevant evidence in the record, neither the courts of appeals nor this Court

are factfinders on appeal. 4 This is especially true of claims of ineffectiveness of

counsel, which come burdened with “a strong presumption” that counsel’s actions

1
“Any allegation of ineffectiveness must be firmly founded in the record, and the record
must affirmatively demonstrate the alleged ineffectiveness.” This Court has repeatedly
reaffirmed these requirements. Tanner v. State, 707 S.W.3d 371, 377 (Tex. Crim. App. 2024)
(quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)) (stating that ineffective-
assistance-of-counsel claims usually fail on direct appeal).

2
That is why this Court has also held a defendant gets a “second bite at the apple”
postconviction when the record is insufficiently developed on appeal. Ex parte Torres, 943
S.W.2d 469, 475 (Tex. Crim. App. 1997). That is, he can file an application alleging the same
claim, and the application is not considered a subsequent one barring this Court from reaching
the merits. See TEX. CODE CRIM. PROC. ANN. art. 11.07 § 5 (subsequent-writ bar).

3
Appellant could have further developed the factual record via a motion for new trial. See
TEX. R. APP. P. 21.7 (“The court may receive evidence by affidavit or otherwise.”); see id. (“A
motion for new trial is a prerequisite to presenting a point of error on appeal only when necessary
to adduce facts not in the record.”).

4
But see Ex parte Jimenez, 364 S.W.3d 866, 870 (Tex. Crim. App. 2012) (stating that the
Court of Criminal Appeals is the ultimate factfinder on in postconviction writ proceedings)
(citing Ex parte Reed, 271 S.W.3d 727-28 (Tex. Crim. App. 2008)).
JACKSON CONCURRENCE – 3

(or inaction) falls with a “wide range of reasonable professional assistance.

Strickland v. Washington, 466 U.S. 668, 689 (1984). As a result, the defendant “must

overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350

U.S. 91, 100–01 (1955)).

I share Judge Finley’s concern about counsel’s apparent decision to boycott

or at least openly pout in response to adverse rulings. Still, we do not know what

counsel may have been thinking or whether, for example, like conduct had prompted

some form of “correction” or otherwise yielded favorable results in like

circumstances in other cases. And while I also doubt that this or some other like

explanation obtains or could be credited as within the presumption of minimum

competence, I am not prepared to speculate as to its absence.

The appropriate place for this claim to be litigated in my view is in a

postconviction habeas proceeding because a habeas court has the authority to make

findings of fact by “order[ing] affidavits, depositions, interrogatories, . . . and

hearings.” TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3(d). A habeas judge can also

use his personal recollection about the case, something this Court obviously cannot

do. Id. Thereafter, we will have the benefit of not only a record and findings and
JACKSON CONCURRENCE – 4

recommendations from the relevant court, but also briefing from the partes, which

can include whether United States v. Cronic, 466 U.S. 648 (1984) applies in this case.

I join the majority in dismissing Appellant’s petition for discretionary review

as improvidently granted.

Filed: December 19, 2025

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