William Edward Muirhead v. the State of Texas ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00089-CR
___________________________
WILLIAM EDWARD MUIRHEAD, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 78th District Court
Wichita County, Texas
Trial Court No. 59,229-B
Before Birdwell, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
Appellant William Edward Muirhead appeals the trial court’s denial of his
motion for new trial based on his claim that he was denied his constitutional right to
effective assistance of counsel. Specifically, Muirhead alleges that his retained
attorney failed to adequately investigate the facts of his offense and offer mitigating
evidence at his open-plea hearing. Muirhead also claims that his attorney failed to
properly inform him of the potential consequences of his plea. After holding a
hearing on Muirhead’s motion for new trial, the trial court denied the motion. We
have reviewed the record and cannot conclude the trial court abused its discretion in
denying Muirhead’s motion for new trial based on his claims of ineffective assistance
of counsel. We therefore affirm the trial court’s judgment.
I. Background
1. Muirhead’s burglary of Dr. Stephen Farr’s home
On September 20, 2017, Wichita Falls police officers responded to a 911 call
placed from the residence of Dr. Stephen Farr. Upon entering Dr. Farr’s home,
police officers saw a broken window and blood. Officers heard a man yelling from
the upstairs area of the home. When the officers went upstairs, they found an elderly
man, later identified as Dr. Farr, standing in the doorway of a bedroom covered in
blood. Officers described Dr. Farr as looking “gruesome.”
At the same time, the officers heard another man, later identified as Muirhead,
yelling and screaming. Officers found Muirhead lying in a small gap between a bed
2
and a wall. Muirhead appeared “extremely agitated,” and his ranting made no sense to
the officers. One officer at the scene believed that Muirhead was intoxicated.
An officer noticed “[a] lot of blood” in a nearby bathroom. The officer also
saw that the toilet tank’s lid had been removed and was sitting on the bathroom
counter. The lid had blood on it. The officer later learned that Muirhead beat
Dr. Farr with the toilet tank lid.
Dr. Farr and Muirhead were subsequently transported to the hospital. In the
days following the attack, Muirhead appeared much less agitated; he responded to
questions appropriately and could engage in civil, peaceful conversations.
2. Muirhead hires attorney Greg Merkle to defend him and enters a
plea of nolo contendere.
Muirhead was indicted,1 and he hired Greg Merkle to represent him. With
Merkle’s assistance, Muirhead waived his right to a jury trial and entered an open plea
of nolo contendere to the trial court.2 Prior to entering his plea, Muirhead
participated in a presentence investigation interview. During his interview, Muirhead
The indictment alleged that Muirhead
1
did then and there intentionally or knowingly enter a habitation, without
the effective consent of Stephen Farr, the owner thereof, and attempted
to commit or committed the felony offense of Aggravated Assault, and
did then and there display a deadly weapon, to-wit: a ceramic toilet tank
lid, that in the manner of its use or intended use was capable of causing
death or serious bodily injury, during the commission of the assault.
2
A plea of nolo contendere has the same legal effect in a defendant’s criminal
case as a guilty plea. See Tex. Code Crim. Proc. Ann. art. 27.02(5).
3
disclosed that he was under the influence of drugs when he burglarized Dr. Farr’s
house and beat him with the toilet tank lid.
Before accepting Muirhead’s plea, the trial court admonished him orally and in
writing as to the range of punishment for the offense of burglary of a habitation as
well as to the consequences of his plea. Muirhead signed the written admonishments,
and at his plea hearing, he confirmed that he understood the range of punishment for
the offense as well as the consequences of this plea. Muirhead informed the trial
court that his lawyer, Merkle, had reviewed the admonishments with him and that he
understood them. Merkle signed the written admonishments as well.
As a part of his plea, Muirhead affirmed that any future discovery of facts
would be “inconsequential to the defense of [his] case.” He stipulated under oath to
the truth of evidence necessary to support his conviction, averred that he was entering
the stipulation freely and voluntarily, and recognized that if he were to later claim that
he was innocent of the crime, the State could charge him with aggravated perjury.
In another plea document, Muirhead represented that he “fully underst[ood]
what offense he [was] charged with,” that he was aware of his constitutional and
statutory rights, that he had been given a “sufficient opportunity to talk to and consult
with” Merkle, and that he was “totally satisfied with the competence and effectiveness
of” Merkle’s representation.
4
Merkle affirmed in writing that Muirhead had a rational understanding of the
proceedings against him and that Muirhead understood the effects of the documents
he had signed.
At his plea hearing, Muirhead told the trial court that he had suffered from
mental-health issues in the past but that there was nothing about his mental condition
at the time of the open-plea hearing that prevented him from understanding the
proceedings. He also told the trial court that he was making his plea freely and
voluntarily. Merkle informed the trial court that Muirhead was competent to stand
trial.
The trial court found in writing, upon examining Muirhead, that he was
mentally competent to enter his plea, that he was aware of the plea’s consequences,
and that Muirhead’s plea and evidentiary stipulation were freely and voluntarily made.
3. Muirhead and the State presented evidence at the plea hearing.
At the plea hearing, after the trial court, Muirhead, and Merkle discussed the
effects of Muirhead’s plea and the papers he had signed, the State presented evidence
concerning the burglary Muirhead had committed and its effect on Dr. Farr and his
family.
In Muirhead’s defense, Merkle presented testimony from Muirhead’s mother,
Carol Muirhead; his psychiatrist, Dr. Adam Butera; and Muirhead himself. Carol
testified that Muirhead has suffered from physical and mental-health problems. She
told the trial court that two months before he broke into Dr. Farr’s home and
5
attacked him, police attempted to admit Muirhead to a state mental hospital, but he
was denied admission due to his high blood pressure.
Carol testified that on the morning of the day he burglarized Dr. Farr’s home,
Muirhead was having “weird dreams.” Muirhead subsequently called 911.
Emergency workers transported him to the hospital. The hospital attempted to have
Muirhead admitted to a state mental hospital, but he was again denied because of his
high blood pressure. The hospital released Muirhead later the same day. That night,
after Carol went to sleep, Muirhead broke into Dr. Farr’s home and beat him.
According to Carol, after Muirhead’s release from the hospital following the
burglary, he could not recall any of the events on the night of the burglary. Muirhead
returned to the hospital in October of 2017 with other medical issues and suffered a
stroke in 2018.
Merkle also presented testimony from Dr. Adam Butera, Muirhead’s treating
psychiatrist. Dr. Butera had been treating Muirhead for depression and anxiety since
2014. Dr. Butera stated that Muirhead told him about an incident that occurred two
months before he committed the burglary. Muirhead told Dr. Butera that police had
grabbed him and confiscated his gun. Muirhead stated that police took him to a state
mental hospital but because of his high blood pressure, he was taken to the
emergency room of a medical hospital where his high blood pressure was treated.
Dr. Butera also testified that on the day of the burglary, prior to the burglary,
Muirhead had been seen at a hospital for high blood pressure, and that the notes from
6
Muirhead’s admission described him as confused and as having “difficulty
remembering.” At that time, the hospital performed a brain scan. The brain scan
showed no bleeding in the brain, no mass, and no swelling.
Dr. Butera opined that Muirhead suffers from hypertensive encephalopathy, a
high-blood-pressure condition that can cause mental confusion and altered
consciousness. He testified that a person who has hypertensive encephalopathy might
not remember his past actions. Dr. Butera testified that Muirhead had told him (like
he had told Carol) that he did not remember the events associated with the burglary
of Dr. Farr’s house. Dr. Butera, however, testified that he could not say that
Muirhead was suffering from hypertensive encephalopathy at the time he committed
the burglary because he did not have the opportunity to assess Muirhead at that time.
Moreover, Dr. Butera stated that he would not expect someone with hypertensive
encephalopathy to “take a toilet seat and hit somebody in the head.”
Additionally, Dr. Butera testified that upon Muirhead’s admissions to the
hospital in September 2017, both before and after he burglarized Dr. Farr’s home, he
tested positive for opiates and cannabinoids. Dr. Butera also acknowledged that
Muirhead’s medical records reflected that he informed hospital personnel that he
takes “Xanax, hydros[,] and other fun pills he can find.” Dr. Butera characterized
Muirhead’s acknowledgement of taking “fun pills” as “sound[ing] like abuse.”
Merkle also offered testimony from Muirhead at the plea hearing. Muirhead
testified that he takes several prescription medications for high cholesterol and high
7
blood pressure. He testified, however, that he did not remember anything about the
September 2017 burglary. Muirhead asked the trial court to defer adjudication of his
guilt and to place him on probation.
During cross-examination, when asked whether he had used marijuana,
Muirhead responded, “I guess I tested positive for marijuana[,] so it had to have been
that.” Muirhead then testified that he did not remember using marijuana before the
burglary but that his son told him that had he had smoked marijuana that day “to see
if it helped [his] pain any better than the pills.” He denied that he had abused
cannabinoids except “[j]ust [the] day” of the burglary.
At the end of the open-plea hearing, Merkle emphasized that Muirhead did not
have a violent history, that his high-blood-pressure issues may have contributed to the
offense, and that he did not remember what had occurred. Merkle asked the trial
court to defer adjudication of Muirhead’s guilt and to place him on probation. In
doing so, Merkle recognized that Muirhead could not be convicted and placed on
regular probation, “It has to be deferred.” Merkle argued, “[The probation] could be
monitored, and the Court would have that hammer over him, over that entire time,
where it could come back if there’s any problem and give him anywhere from five to
99 years or life in prison.” After hearing the State’s closing argument in response, the
trial court found Muirhead guilty and sentenced him to forty years’ confinement.
8
4. Muirhead claims that Merkle was ineffective and files a motion for
new trial.
Shortly after he was sentenced, Muirhead hired new counsel and filed a motion
for new trial claiming that Merkle was ineffective. At the hearing on Muirhead’s
motion for new trial, he called three witnesses: Dustin Nimz, a local defense attorney;
Merkle; and himself.
Nimz testified that Merkle should have hired a neurologist or a forensic
psychologist to determine if Muirhead was suffering from brain damage at the time
that he committed the burglary. According to Nimz, Merkle’s failure to do so
constituted ineffective assistance. Nimz conceded, however, that the evidence
showed that Muirhead had ingested cannabinoids on the day he committed the
burglary, and that voluntary intoxication cannot support a mental-health defense.
Nimz also agreed that Merkle’s knowledge of Muirhead’s voluntary intoxication could
have impacted his decision to not pursue a mental-health defense.
Nimz further testified that Merkle was ineffective for allowing Muirhead to
plead open to the trial judge because she had only been on the bench for about a
month and had no “real track record” available to use to predict what type of
sentence she would impose. Nimz conceded, however, that given Dr. Farr’s years of
service as a dentist in the Wichita Falls area, a jury would have likely considered him a
sympathetic victim and would have found Muirhead’s offense “worthy of
punishment.”
9
Merkle, who has practiced law for forty years and represented thousands of
defendants, testified that he and Muirhead initially planned to pursue an insanity
defense and try the case in front of a jury. He stated, however, that after he learned
that Muirhead’s actions the night of the burglary may have been a reaction to some
“bad drugs,” he did not believe that an insanity defense was viable. Merkle’s belief
regarding the insanity defense was strengthened when he was informed that
Muirhead’s medical records showed he was using cannabinoids at the time he
committed the burglary. Merkle testified that he did not believe an insanity defense
would be successful. Merkle stated
In discussing it with Dr. Butera, quite frankly, I did not think that a jury
would buy it in light of my client’s behavior if we did it in front of a jury,
and I think an insanity defense is very hard to sell. It’s good on TV but
not in reality. I didn’t think it would sell to a jury. I think they would
hear the phone call, the witnesses, and they would convict him, and if
they were the ones deciding punishment, the punishment would be
extremely severe.
....
. . . I believed that if we went to trial with the insanity defense to
a jury, they would not, based on the evidence, support that. They would
find him guilty, and their punishment would be more severe than the
route we took.
Merkle believed that a trial court, if choosing to find Muirhead guilty rather
than defer adjudication of his guilt, would assess a sentence that would be less than a
jury would assess. Concerning the open plea to a relatively new judge, Merkle testified
10
that he had “put [the case] off” several times to try to get an indication on the likely
sentence that the trial court might assess.
With respect to the claim that he had failed to adequately investigate
Muirhead’s case, Merkle emphasized that in addition to speaking to Dr. Butera,
Muirhead’s treating psychiatrist, at least four times before the plea hearing, he had
obtained and reviewed “all of” Muirhead’s records from hospitalizations (including
records from Muirhead’s July 2017 and September 2017 hospital stays), ambulance
records, and police records. Regarding his alleged failure to speak with a neurologist,
Merkle testified, “I didn’t think it was necessary. In talking with Butera and the
family, there was more of an indication that this may have been a reaction to . . . some
bad drugs.” More specifically, Merkle indicated that he had learned from Muirhead’s
family that Muirhead may have had a reaction to K2—a synthetic cannabinoid that is
much stronger and more dangerous than regular cannabis.
On questioning by the State, the following exchange occurred:
Q. And [you] had learned about [Muirhead’s cannabinoid use]
from family members of the defendant, including the defendant,
himself?
A. And from the defendant, it was - - To clarify, the answer
would be, yes, but from the defendant was what some other family
member had told him, to be clear.
Q. And that gave you very little hope that by virtue of the
voluntary intoxication he was going to . . . be successful in any kind of
defense of insanity?
A. I did not think it would be successful.
11
Concerning his discussion with Muirhead about the consequences of his plea,
Merkle testified that “throughout representation” and close to the plea hearing, he
had explained the parole consequences of being convicted and sentenced to an
offense involving a deadly weapon.3 He testified that even given the parole-related
concern about pleading nolo contendere to an offense that involved a deadly weapon,
Muirhead’s strategy was to take responsibility for his offense and to enter the plea of
nolo contendere with the hope of being placed on deferred-adjudication community
supervision.
As for Muirhead, contrary to his written averment in his plea papers, he
testified that he had not been “well-represented.” On cross-examination, however,
Muirhead admitted that no one had forced him to enter a plea of nolo contendere.
After considering the parties’ evidence and arguments, the trial court denied
Muirhead’s motion for new trial. In its order denying the motion, the trial court
found that Merkle was credible, that Muirhead had been “admonished pursuant to the
law,” that Muirhead had “made a knowing and intelligent waiver of his rights,” and
that Muirhead had entered his nolo contendere plea freely and voluntarily.
II. Effective Assistance of Counsel in Plea Proceedings
When an appellant raises the issue of ineffective assistance in a motion for new
trial, we review the trial court’s denial of the motion for an abuse of discretion. State
3
According to Merkle, he met with Muirhead on “at least ten” occasions “if not
more.”
12
v. Herndon, 215 S.W.3d 901, 905 n.4, 906–07 (Tex. Crim. App. 2007). We view the
evidence in the light most favorable to the trial court’s ruling, and we will reverse only
if no reasonable view of the record could support the trial court’s finding. Charles v.
State, 146 S.W.3d 204, 207–08 (Tex. Crim. App. 2004), superseded by statute on other
grounds by Tex. R. App. P. 21.8(b), as recognized in Herndon, 215 S.W.3d at 905 n.5.
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. This right extends to the plea-bargain process. See Hill v. Lockhart, 474
U.S. 52, 58–59, 106 S. Ct. 366, 370–71 (1985); Ex parte Evans, 537 S.W.3d 109, 111
(Tex. Crim. App. 2017). To establish ineffective assistance, a defendant 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).
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
S.W.3d 808, 813–14 (Tex. Crim. App. 1999). Our review of counsel’s representation
is highly deferential, and we indulge a strong presumption that counsel’s conduct was
13
not deficient. Nava, 415 S.W.3d at 307–08. The constitutional right to effective
assistance of counsel does not guarantee errorless counsel. Shilling v. State, 977 S.W.2d
789, 791 (Tex. App.—Fort Worth 1998, pet. ref’d).
To establish prejudice when a defendant claims counsel’s alleged deficient
performance resulted in a guilty plea, the defendant must show a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial. Hill, 474 U.S. at 59, 106 S. Ct. at 370; Ex parte Lewis,
537 S.W.3d 917, 923 (Tex. Crim. App. 2017); see also Lee v. United States, 137 S. Ct.
1958, 1965–67 (2017) (holding that even a defendant with no realistic defense to a
charge may still be able to show prejudice when counsel’s bad advice resulted in a
guilty plea). In determining whether a defendant would not have pleaded guilty but
for counsel’s deficient advice, we consider the circumstances surrounding the plea and
the gravity of the alleged failure material to that determination. Ex parte Moody, 991
S.W.2d 856, 858 (Tex. Crim. App. 1999).
III. Muirhead did not meet his burden to show that Merkle failed to perform
an adequate investigation or that any inadequate investigation
prejudiced him.
In his first issue, Muirhead claims that Merkle was ineffective because he failed
to conduct a sufficient investigation into the facts of his case. We disagree. Merkle
conducted a thorough investigation into the facts of Muirhead’s offense and into the
possible defenses that Muirhead could assert at a trial and at the open-plea hearing.
14
A counsel’s investigation of the facts must be reasonable.
Counsel for a defendant in a criminal case must independently investigate facts.
Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986). But counsel “is not required
to investigate every conceivable line of evidence, no matter how unlikely the effort
would be to assist the defendant.” Ex parte Donato, No. 02-16-00006-CR, 2016 WL
673668, at *4 (Tex. App.—Fort Worth Feb. 18, 2016, pet. ref’d) (mem. op., not
designated for publication); Cantu v. State, 993 S.W.2d 712, 718 (Tex. App.—San
Antonio 1999, pet. ref’d) (“[T]he duty to conduct an investigation . . . is not
absolute.”). Counsel’s discovery of certain facts within an investigation may lead to a
decision that the investigation of further facts is unnecessary. Butler, 716 S.W.2d at 54;
see also Strickland, 466 U.S. at 691, 104 S. Ct. at 2066 (“[C]ounsel has a duty to make
reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.”).
The reasonableness of a decision to not investigate must be considered in light
of all of the circumstances and must be assessed by applying heavy deference to the
decision. Ex parte Martinez, 195 S.W.3d 713, 721 (Tex. Crim. App. 2006). “When
assessing the reasonableness of an attorney’s investigation, a reviewing court must
consider the quantum of evidence already known to counsel and whether the known
evidence would lead a reasonable attorney to investigate further.” Id. A conviction
will not be reversed for a failure to investigate unless the consequence of the failure
“is that the only viable defense available to the accused is not advanced.” Donald v.
15
State, 543 S.W.3d 466, 477 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (op. on
reh’g); Bahr v. State, 295 S.W.3d 701, 712 (Tex. App.—Amarillo 2009, pet. ref’d).
1. Merkle’s investigation of the facts and defenses was reasonable.
Merkle began his representation of Muirhead in September 2017, shortly after
the burglary had occurred. During his representation, Merkle consulted with
Muirhead’s treating psychiatrist, Dr. Butera, on four occasions. He also (1) met with
Muirhead on at least ten occasions, (2) reviewed police records from Muirhead’s July
2017 suicidal incident, (3) reviewed records related to Muirhead’s admission to the
hospital in July 2017, (4) reviewed records related to both of Muirhead’s September
2017 hospital stays (before and after the burglary), (5) reviewed records from
Muirhead’s transport by ambulance to the hospital following the burglary, and
(6) reviewed 2018 hospital records related to Muirhead’s stroke.
Muirhead relies on attorney Nimz’s assertion that Merkle should have
consulted a forensic psychologist or neurologist in order to develop potential defenses
of insanity, diminished capacity, or the commission of an involuntary act to assert that
Merkle’s investigation was deficient. The strategic choices that a lawyer makes,
however, are “virtually unchallengeable” if made after a thorough investigation of the
law and relevant facts. Strickland, 466 U.S. at 688; 104 S. Ct at 2065. And the court
presumes that counsel made all significant decisions in the exercise of reasonable
professional judgment. Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992).
16
This presumption does not change merely because another lawyer may have used a
different strategy. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).
Merkle’s strategic choices regarding Muirhead’s case were made after a
thorough investigation of the law and relevant facts. Merkle testified that he and
Muirhead initially planned to assert an insanity defense at trial. Merkle changed his
mind, however, after he learned that Muirhead was intoxicated when he committed
the burglary. Merkle testified that Muirhead’s family told him that the burglary had
resulted from a “reaction to . . . some bad drugs.” A police officer who observed
Muirhead at the scene of the robbery testified that Muirhead appeared to be
intoxicated. And when Muirhead was admitted to the hospital following the burglary,
he informed hospital staff that he had taken “Xanax, hydro[,] and other fun pills he
[could] find.” Muirhead tested positive for opiates and cannabinoids at the hospital
both before and after on the day that he burglarized Dr. Farr’s home. During his
presentence investigation interview, Muirhead stated that he was “under the influence
of drugs or alcohol” when he committed the burglary.
Because insanity caused by voluntary intoxication is not a defense to an
offense, Merkle believed that Muirhead should not assert an insanity defense. See
Ex parte Howard, 425 S.W.3d 323, 323–34 (Tex. Crim. App. 2014) (“Texas law
prevents the consideration at guilt of evidence of insanity caused by voluntary
intoxication.”). Merkle testified that because he knew Muirhead was intoxicated at the
time of the offense and after discussing the likelihood of prevailing on an insanity or
17
diminished capacity defense with Muirhead, he rejected a strategy of relying on those
defenses. Moreover, Merkle stated that he did not believe it was necessary to obtain
the assistance of a neurologist or forensic psychologist because he and Muirhead had
agreed to rely on Muirhead’s hypertensive encephalopathy (high blood pressure)
condition as a defense. This defense was suggested by and supported by Muirhead’s
treating psychiatrist, Dr. Butera. Merkle testified that Dr. Butera informed him that
Muirhead’s hypertensive encephalopathy condition could have confused him and led
him to break into Dr. Farr’s home believing that it was his own home.
Accordingly, at the open-plea hearing, Merkle presented testimony from
Dr. Butera regarding Muirhead’s hypertensive encephalopathy condition. Dr. Butera
opined that based on his review of Muirhead’s medical records and his expert
knowledge and research, Muirhead had suffered from hypertensive encephalopathy
which may have caused him to suffer from an altered consciousness. Dr. Butera
based his opinion, in part, on references to Muirhead’s high blood pressure in July
2017 and September 2017—medical records that coincided with incidents of mental
confusion at those times. He further explained that when he saw Muirhead after
September 2017, at times when Muirhead’s blood pressure had been lowered to
normal levels through medication, Muirhead’s “mental status was clear” and he was
“oriented to person, place[,] and situation.” Dr. Butera testified, “I’ve seen him nine
times since the assault, and each time he was clear-headed and lucid, presumably
because he’s on his blood pressure pills now[.]”
18
Merkle limited his investigation to the defense of hypertensive encephalopathy
after he learned that Muirhead’s intoxication had possibly caused him to commit the
burglary. He testified that his strategy was to seek the trial court’s mercy by
presenting evidence on how Muirhead’s mental condition, caused by the condition of
hypertensive encephalopathy, may have contributed to the offense. Merkle believed
that asserting a defense of insanity in light of Muirhead’s voluntary intoxication would
be ineffectual. See Cueva v. State, 339 S.W.3d 839, 848 (Tex. App.—Corpus Christi–
Edinburg 2011, pet. ref’d) (holding that when the facts adduced at trial and at any
hearings concerning ineffectiveness do not show that the defensive issue in question
would have been viable, trial counsel is not deficient for failing to further investigate
and pursue that defense at trial). Muirhead was not deprived of a viable defense;
Merkle presented evidence that Muirhead’s hypertensive encephalopathy condition
could have caused him to commit the offense. See Donald, 543 S.W.3d at 477 (holding
that a conviction will not be reversed for a failure to investigate unless the
consequence of the failure “is that the only viable defense available to the accused is
not advanced”).
After applying a heavy measure of deference to Merkle’s decision to limit his
investigation, we cannot conclude that Muirhead met his burden of showing by a
preponderance of the evidence that his trial counsel’s representation was deficient.
See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307.
Moreover, even had Muirhead met the first prong of Strickland, Muirhead has not
19
shown a reasonable probability that, but for Merkle’s error in failing to obtain the
services of a neurologist or forensic psychiatrist, he would not have pleaded guilty and
would have insisted on going to trial; Muirhead has not shown that such witnesses
were available to testify or shown what their testimonies would have been. And in the
absence of any evidence in the record indicating what the results of an investigation of
Muirhead’s mental health might have revealed or what the testimony from the
additional witnesses would have been, his arguments amount to assertions that the
failures to investigate and call additional witnesses had a conceivable effect on the
outcome of the trial, which is insufficient to support a claim of ineffective assistance.
See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (holding that a defendant
who complains about trial counsel’s failure to call witnesses must show the witnesses
were available and that he would have benefitted from their testimony); Edwards v.
State, Nos. 03-17-00309-CR, 03-17-00310-CR, 03-17-00311-CR, 2018 WL 1077755, at
*5 (Tex. App.—Austin Feb. 28, 2018, no pet.) (mem. op., not designated for
publication) (overruling ineffective-assistance claim based on counsel’s alleged failure
to investigate mental-health issues because the record contains no evidence of what a
further investigation would have revealed or what the testimony from additional
witnesses would have been); Straight v. State, 515 S.W.3d 553, 568 (Tex. App.—
Houston [14th Dist.] 2017, pet. ref’d) (explaining that ineffective-assistance claim
“based on trial counsel’s general failure to investigate” will fail absent “a showing of
what an investigation would have revealed that reasonably could have changed the
20
result of the case” and overruling issue because defendant “did not present any
evidence regarding what” investigation would have revealed). Because Muirhead has
failed to sustain his burden under Strickland, we overrule Muirhead’s first issue.
IV. Muirhead did not meet his burden to show that Merkle was deficient by
failing to inform him of the consequences of his nolo contendere plea.
In his second issue, in one sentence, Muirhead claims that Merkle was
ineffective because he failed to inform him of the consequences of his plea of nolo
contendere. The record, however, belies Muirhead’s claim.
The record reflects that Muirhead signed the written admonishments at his plea
hearing and confirmed that he understood the range of punishment for the offense as
well as the consequences of this plea. Muirhead informed the trial court that his
lawyer, Merkle, had reviewed the admonishments with him and he understood them.
Muirhead swore that his judicial stipulation to the facts of the offense was made freely
and voluntarily and without duress. Muirhead represented that he understood that
based on the evidentiary stipulation he had signed, the trial court could find him
guilty.
For his part, Merkle testified that he had explained the potential parole
consequences of Muirhead’s plea of nolo contendere to Muirhead before Muirhead
entered the plea.
The trial court also informed Muirhead of the consequences of his plea. At the
open-plea hearing, the trial court confirmed that (1) Muirhead knew that he was
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charged with burglary, (2) Merkle had discussed the indictment with him, and (3) he
was aware that the trial court could impose punishment of up to confinement for life.
The court also ensured, by questioning Muirhead and Merkle, that Muirhead
understood the nature of the proceedings and was competent to stand trial. Finally,
the trial court determined that Muirhead had discussed the plea documents he had
signed with Merkle and that he had understood the effects of the documents before
signing them. The trial court found that Muirhead had knowingly and intelligently
waived constitutional and statutory rights and that he had entered the nolo contendere
plea freely and voluntarily.
We find nothing in the record to indicate that Muirhead was unable to consult
with Merkle or did not understand the nature of the proceedings against him. In
contrast, the record reflects that Muirhead was fully aware of the consequences of his
plea.
Muirhead also claims that Merkle was ineffective because he allowed him to
enter a plea “before a trial court judge [who] had been on the bench just a couple of
months.” We disagree. At the hearing on the motion for new trial, Merkle testified
that Muirhead’s strategy was to be placed on community supervision and avoid
confinement. Merkle explained that he believed Muirhead’s plea of nolo contendere
would give him the best chance to obtain that result. After assessing the facts of
Muirhead’s offense—including Dr. Farr’s demeanor in the 9-1-1 call, the photos
depicting Dr. Farr’s bloody injuries, and Muirhead’s positive test for cannabinoids
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following the offense—Merkle concluded that if Muirhead took his case to a jury, the
jury would convict him and would impose an “extremely severe” sentence. Merkle
characterized the possibilities of a jury finding Muirhead not guilty or finding him
guilty and imposing probation as “highly unlikely.” Merkle stated that by choosing to
the have the trial judge sentence him, it was possible that the court would place
Muirhead on a deferred-adjudication community supervision.
Here, the record does not reflect that the decision to have the judge assess
punishment was not a tactical strategy. Accordingly, we find no merit in Muirhead’s
claim that Merkle was ineffective for allowing him to enter his plea of nolo
contendere before the judge.
After reviewing the record in the light most favorable to the trial court’s ruling,
we hold that the trial court did not abuse its discretion by denying Muirhead’s motion
for new trial on the basis that Merkle failed to explain the potential parole
consequences of Muirhead’s plea of nolo contendere or because Merkle allowed him
to enter his plea before this particular trial court judge. Charles, 146 S.W.3d at 208.
We overrule Muirhead’s second issue.
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V. Conclusion
Having overruled Muirhead’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: September 30, 2021
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