IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,809
Ex parte MICHAEL DEE HOWARD, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 4321-A IN THE 216TH DISTRICT COURT
FROM GILLESPIE COUNTY
K ELLER, P.J., delivered the opinion of the Court in which W OMACK,
J OHNSON, C OCHRAN and A LCALA, JJ., joined. K EASLER, J., filed a dissenting opinion
in which H ERVEY, J., joined. P RICE, J., dissented. M EYERS, J., did not participate.
This is an application for a writ of habeas corpus. Applicant claims, for various reasons, that
he received ineffective assistance of counsel at the guilt phase of his aggravated-assault trial. We
filed and set the application for submission “to determine whether there is a reasonable probability
that the result would have been different at guilt, but for counsels’ deficient performance,” and
directed the parties to brief the issue.1 The trial court recommended that we grant relief in the form
of a new trial. We hold that applicant cannot establish prejudice at the guilt phase of trial, but our
resolution of some of his claims leads us to remand the case to the trial court to make findings on
1
Ex parte Howard, Order, No. AP-76,809 (Tex. Crim. App. May 23, 2012) (per curiam) (not
designated for publication).
HOWARD — 2
whether applicant was prejudiced at the punishment phase by counsel’s conduct.
I. TRIAL
Shortly before midnight on September 4, 2004, Linda Howard, applicant’s wife, saw
applicant’s truck approaching her son’s house where she and her daughter were temporarily staying.
She announced to the others in the house—her son Bradley Howard, her daughter Britney Howard,
and Bradley’s girlfriend Cammie Olfers—that applicant had just pulled up to the house. Cammie
and Britney hid in a back bedroom. Bradley went to the front of the house where he saw applicant
in his truck fidgeting around and going through items. He met applicant at the front door. Applicant
asked where Linda was, and Bradley replied, “She’s in the house. What do you need?” As Linda
came to the door, he stepped aside to let applicant in. Applicant demanded money from Linda, and
when she protested, they began to argue. As they argued, Bradley saw a knife-sharpening rod
hanging from applicant’s belt loop. He grabbed it and asked applicant what it was for. Bradley
commented to applicant that the rod had “a good handle on it and it’s hard. You could either hit
somebody with it or it’s got a pointy end and you could stab somebody with it.” “Good guess,”
applicant “snickered.”
While Linda was upstairs getting the money applicant demanded, Bradley asked applicant
why he was acting this way and what was wrong with him. Applicant began blaming “everything”
on the family, saying that it was their fault. He walked to the door as if to leave, but stopped, leaving
his hand on the handle. Applicant quickly turned around and swung his arm towards Bradley.
Bradley felt a “funny tingling feeling” in his arm and ran to the kitchen to find it cut open and
bleeding profusely. According to Cammie and Britney, Bradley screamed, “I can’t believe you did
that to me!” When he showed applicant what he had done, applicant said, “I’m not through with
HOWARD — 3
you” and charged Bradley with the box cutter that had sliced his arm. Seeing a large amount of
blood in the kitchen and on Bradley, Cammie ran from the dining room and starting slapping
applicant. Applicant cut her hand as she tried to block her face from his blows. Bradley and
applicant fought and struggled down a hallway. Bradley tried to stay between applicant and Cammie
until they reached the computer room at the end of the hallway. Cammie fell onto a bed, and Bradley
jumped on top of her to protect her from applicant. Applicant plunged the knife into Bradley’s back.
Bradley turned around and bear-hugged applicant, and he stuck the knife into Bradley’s back again.
Bradley threw applicant to the floor, and Cammie and Linda helped subdue him and pry the knife
from his hand. Cammie took the knife and the sharpening rod and threw them in the bushes outside
of the house. Britney called 911. While applicant was pinned down, Cammie told applicant that she
could not believe that he would do this to people he was supposed to love. Applicant answered, “Do
you really think I care[?] The person you are and the family you come from, I could care less. You
don’t think I can find y’all and hunt y’all down?”
Law enforcement officers arrived and arrested applicant. They also seized the box cutter and
the sharpening rod from the bushes. Both appeared to have blood on them. EMS took Bradley to
the hospital, where he underwent reconstructive surgery on his arm and received stitches for the two
back wounds. As a result of the assault, he could not use his arm for approximately a month and
received physical therapy.
The theme of applicant’s case-in-chief was that he was a loving father who would never
intentionally or knowingly hurt his son but that the effects of many different medications prescribed
to treat his ailing emotional and mental health frequently caused him to black out and forget events.
Applicant testified that he suffered a blackout on the night of the assault and remembered only “brief
HOWARD — 4
snapshots” of that night. He did not remember getting the box cutter or the sharpening rod, going
to Bradley’s house, or cutting and stabbing Bradley with the box cutter. Applicant stated that after
the assault he had blackouts, memory loss, and hallucinations. He also claimed that, since the
change in his medication, he no longer experienced those symptoms. To refute his assertion that he
was a loving father, the State cross-examined applicant at length about a large number of prior bad
acts and extraneous offenses.
Linda Howard, applicant’s wife, testified that she could recall only one incident when
applicant could not remember the previous day’s events. Otherwise, she testified, applicant did not
typically forget events. Linda did say that applicant suffered from severe depression that began as
early as 1997. As his depression progressed, he stopped going to work at the auto-repair shop that
he owned and managed. Sometimes he had been scared to come out of the house. She testified that
applicant’s intoxicated-like state was a result of over-medicating or consuming alcohol while taking
his medication.
Lieutenant Michael Jennings, the Gillespie County Jail administrator, testified that when
applicant first arrived, he “seemed to be all right.” Later in the week, however, applicant became
“semi-suicidal, tried to strangle himself, put his head in the toilet, and [jail personnel] had to take
him to the hospital and finally get him into MH/MR [Mental Health/Mental Retardation] . . . .”
According to Jennings, after the hospital visit, applicant was put on different medication and no
longer had the tendency to hurt himself. Since the medication change, applicant had been classified
as a trusty and was reliably fulfilling those duties.
Sharon Grona, applicant’s sister, testified that applicant used to be full of life, but in the last
few years he became withdrawn, which worsened as the years went on. Before the medication
HOWARD — 5
change, it was difficult to converse with him, he was unfocused, and he shook. Grona noticed that,
with the change in medication, applicant gradually improved while in jail.
A jury found applicant guilty of aggravated assault and assessed a punishment of twenty
years’ confinement and a $5,000 fine. The court of appeals affirmed the judgment and sentence.2
II. APPLICANT’S CLAIMS
In his application for a writ of habeas corpus, applicant claims that he received ineffective
assistance of counsel at trial and on appeal. Applicant claims that his trial counsel were deficient
for the following reasons which prejudiced him at trial:
• failing to pursue an insanity defense;
• failing to investigate an insanity defense with the use of experts;
• failing to have a mental-health expert appointed and to use expert witnesses at trial;
• failing to discover witnesses that would support an insanity defense;
• failing to properly file a business-records affidavit under the rules of evidence;
• sponsoring damaging evidence before the jury and calling an adverse witness to
testify;
• failing to object to Texas Rule of Evidence 404(b) evidence at trial;
• failing to request a limiting instruction to extraneous-misconduct evidence;
• failing to object to an improper venire shuffle;
• failing to invoke “the Rule” under Texas Rule of Evidence 614; and
• failing to have bench conferences recorded during trial.
We remanded the application to the trial court to make findings of fact and conclusions of law as to
2
Howard v. State, 239 S.W.3d 359 (Tex. App.—San Antonio 2007, pet. ref’d).
HOWARD — 6
whether applicant’s trial counsel performed deficiently and, if so, whether their deficient
performance prejudiced applicant.3 Pursuant to this Court’s order, the habeas judge conducted an
evidentiary hearing and entered findings of facts and conclusions of law, which concluded that
applicant’s trial counsel performed deficiently and prejudice resulted.
III. ANALYSIS
In analyzing claims of ineffective assistance of counsel under the Sixth Amendment, we
apply Strickland v. Washington’s two-part framework.4 An applicant must prove by a preponderance
of the evidence that (1) “his counsel’s performance was deficient,” and (2) “there is a ‘reasonable
probability’—one sufficient to undermine confidence in the result—that the outcome would have
been different but for his counsel’s deficient performance.”5 In framing the issue on submission as
we have, we have chosen to focus our review on the latter.
When considering a habeas judge’s findings of fact, we give “almost total deference” to those
findings when they are supported by the record.6 But we review a trial judge’s conclusions of law
de novo.7
A. Extraneous-Misconduct Evidence Claims
At trial, the State cross-examined applicant about a multitude of instances of extraneous
3
Ex parte Howard, Order, WR-73,183-01, at 2 (Tex. Crim. App. December 8, 2010) (per
curiam) (not designated for publication).
4
Ex parte Chandler, 182 S.W.3d 350, 353 (Tex. Crim. App. 2005) (citing Strickland, 466
U.S. 668, 686 (1984)). See also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).
5
Ex parte Chandler, 182 S.W.3d at 353 (citing Strickland, 466 U.S. at 694).
6
Ex parte White, 160 S.W.3d 46, 50 (Tex. Crim. App. 2004).
7
Ex parte Brown, 158 S.W.3d 449, 453 (Tex. Crim. App. 2005).
HOWARD — 7
misconduct. Applicant catalogs the State’s evidence of his extraneous misconduct that was admitted
without objection, a request for a limiting instruction, or burden of proof instructions on such
evidence:
• he has a very bad temper;
• he struck his daughter several times when she was sick with mononucleosis;
• he hit his wife so hard that he knocked her out and left her unable to sleep on that
side of her head because of her injuries;
• he hit his wife while she held their children;
• he punctured the tires on his son’s car;
• he was drunk, passed out, threw up, and assaulted a party guest;
• he bought lingerie for a female high-school employee;
• he grabbed Bradley by the neck and held him against a wall;
• he punched holes in the walls of his parents’ house;
• he shot a hole in the ceiling;
• he stabbed a bag of potato chips while yelling at his wife;
• he threw a bottle of wine and broke it;
• he broke the window of his son’s car;
• he went to strip clubs when his family was having financial problems;
• he called his wife a “bitch”;
• he wrote an incoherent and rude Valentine’s Day note to his wife;
• he wrote an aggressively worded note to his employees at his auto-repair shop;
• he took his wife’s clothes outside and ripped them up;
HOWARD — 8
• he drank too much;
• he over-medicated himself;
• he routinely threatened his family with suicide;
• he was verbally abusive to his wife and employees;
• he fought a police officer on a lake trip and bit the officer’s hand;
• while attempting to assault Bruce Thiele, he pushed his wife, who fell and struck her
chin and knees;
• he threatened his wife and told her that if she called the police, he would take out two
officers, one for himself and one for his brother;
• he stabbed Cammie Olfers in the hand as she protected her face and neck;
• he told Linda Howard that he had “just knocked the shit out of Britney and told
[Britney] to leave”;
• he was referred to anger management;
• he grabbed his son Andy by the neck and picked him up off the dinner table;
• he called his daughter a “bitch”; and
• he tried to pull down his daughter’s swimsuit when he was drunk at a lake.
The habeas judge concluded that defense counsels’ omissions constituted deficient performance but
that this deficient performance did not prejudice applicant.8 We agree.
While this evidence was most likely damaging, applicant fails to prove by a preponderance
of the evidence that, if counsel had objected to all of the extraneous-misconduct evidence and all of
it had been excluded by the trial judge, the outcome at trial would have been different. The State’s
evidence was overwhelming and uncontested. Applicant arrived at Bradley’s home armed. After
8
Findings and Conclusions at 23 (“Trial defense counsel’s performance was deficient, but
the Court feels that this deficient performance did not prejudice the defense.”)
HOWARD — 9
the first swing of the box cutter sliced Bradley’s arm, applicant said, “I’m not through with you” and
charged Bradley. Applicant also cut Cammie’s hand when she came to Bradley’s aid. Three
witnesses saw applicant stab Bradley with the box cutter or saw the direct results of the attack and
struggled to subdue and disarm him. Applicant’s statements during and immediately after the attack
indicate that he was aware of what he was doing and disregarded the consequences of his conduct.
The police recovered the bloody knife that applicant used to assault Bradley. Lastly, Bradley
suffered serious bodily injury. In light of all the significant, uncontested evidence at trial inculpating
applicant, we are unable to say that the jury would have reached a different conclusion in the absence
of the extraneous-misconduct evidence. Similarly, applicant is unable to demonstrate that the jury
would have reached a different conclusion had counsel sought and obtained a limiting instruction
or a jury instruction on the burden of proof required to be satisfied before the jury could consider the
extraneous-misconduct evidence.
Applicant also claims that he was prejudiced by counsel’s eliciting damaging evidence before
the jury and calling Linda Howard, a witness applicant characterizes as adverse. Applicant points
to counsel’s cross-examination of Bradley in which he testified about a previous physical fight with
applicant in 2003 where applicant spit in his face. In his direct examination of Linda Howard,
counsel elicited extraneous-misconduct evidence concerning applicant’s violent behavior when
Linda was driving applicant to a mental-health appointment. She stated that he was “banging against
the glass window, kicking the windshield.” Without adding any details, she claimed that he became
aggressive toward her and she decided to return home. When asked by trial counsel if applicant ever
experienced memory loss, she described one incident where applicant had been drinking and was
spotted at a local gas station and then continued on to his auto-repair shop, where he drove into the
HOWARD — 10
roll-up garage door. Applicant claims that trial counsel’s elicitation of this testimony prejudiced him
because it “established the volatile, violent nature of [applicant].”
The habeas judge concluded that, while counsel’s performance was deficient, no prejudice
resulted. Consistent with our conclusion of applicant’s previous extraneous-misconduct claims, we
agree that applicant is unable to establish that prejudice resulted in light of the overwhelming
evidence presented at trial.
B. Venire Shuffle, Invoke “the Rule,” and Bench Conferences
The habeas judge concluded that failing to object to the venire shuffle and invoke “the rule”
was not deficient performance. Without making a specific finding as to performance or prejudice,
the judge also concluded that counsels’ failure to have bench conferences recorded was not
ineffective assistance. Applicant does not assert these points in his brief before the Court. In his
application and memorandum in support, applicant claims that failing to object to the trial court’s
shuffle prejudiced him “by directly influencing which potential jurors could be selected as jurors in
the case” and that failing to invoke the rule resulted in prejudice because it permitted the State’s
witnesses to directly refute applicant’s claim that he was a loving father. As to counsel’s failure to
have the bench conferences recorded, applicant argues that this prejudiced him because it “allowed
the loss of possible errors for review that went to decisions to admit evidence and rule on
objections.” Applicant is unable to establish that these omissions resulted in prejudice sufficient to
change the outcome of the proceeding.
C. Insanity Defense Claims
The habeas judge concluded that the insanity defense was viable in this case, and that
counsel’s failure to have mental-health experts appointed and to use expert witnesses in investigating
HOWARD — 11
and presenting an insanity defense was deficient performance. The judge further concluded that, but
for this deficient performance, the outcome of the proceeding would have been different. Texas
Penal Code § 8.01(a) provides that, “It is an affirmative defense to prosecution that, at the time of
the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his
conduct was wrong.” To be excused from criminal responsibility under this section, the actor must
prove insanity by a preponderance of the evidence.9 Therefore, to prevail under Strickland’s
prejudice prong, applicant must establish a reasonable probability that the jury would have found (by
a preponderance of the evidence) that applicant was insane at the time of the offense.
In support of his insanity-defense claims, applicant introduced testimony from a number of
his friends and family members who described, with varying levels of specificity, their perceptions
of applicant’s behavior. The majority of these witnesses, despite having known applicant for many
years, did not witness any bizarre behavior and did not know whether applicant was suffering from
any debilitating mental condition. If applicant told them anything about any mental impairment, it
consisted of vague statements such as “he had problems” or “he was depressed.” Gregory Hagel’s
testimony, by way of affidavit, was the exception. Applicant told him that he was taking Xanax and
Prozac and that he tried mixing the medications with alcohol but stopped because of its effect on
him. Hagel noticed applicant’s behavior start to change and recalled seeing applicant “walking like
a zombie” and standing in his front yard in his underwear or wearing “funky” pants. Hagel did not
testify at the evidentiary hearing, and his affidavit did not specify when he witnessed applicant’s
bizarre behavior.
In addition to Hagel’s affidavit, testimony from Sharon Grona and her husband Billy Grona
9
TEX . PENAL CODE § 2.04(d).
HOWARD — 12
was the most specific as to the change in applicant’s behavior and mental condition. She stated that
applicant’s personality started to change in 2001: he was not as social as he once was, it was difficult
to talk to him, noise bothered him, and his hands shook. She learned that applicant was prescribed
medication, but he would frequently take too much of it. She testified that, on the day after his
arrest, applicant was “totally out of it,” confused as to what was happening, and crying
uncontrollably. Billy Grona, applicant’s brother-in-law, stated that applicant was always very social,
but that he began to change around 2002, and conversing with him became difficult. Both Sharon
and Billy Grona recalled a specific incident of applicant’s bizarre behavior. According to the
Gronas, one afternoon (sometime between 2002 and the arrest), applicant came outside of his house
in his underwear to move a car parked nearby. He went back inside the house to put on pants but
returned wearing another pair of underwear over the first pair. After applicant was arrested for the
assault, Billy Grona went to applicant’s house, where he found the furniture stacked against the
house’s front windows. Grona also discovered that the back room’s glass doors were spray painted
with ceiling texturing material.
Roger Glenn, Michael Caldwell, and Michael Wallendorf—the witnesses whom applicant
claims counsel should have discovered through investigation—testified at the writ hearing as well.
Glenn, applicant’s friend since 1989, noticed a change in him too, but believed it was from the
exposure to chemicals applicant used on vehicles in his auto-repair business. He did not witness any
bizarre behavior, but he felt that applicant was just not the same person he used to know. He did
know applicant was on antidepressants. He testified that applicant was frequently absent from work
because he was at home lying down.
Caldwell and Wallendorf were Gillespie County Sheriff’s Deputies who both worked at the
HOWARD — 13
jail at the time applicant was taken into custody but knew applicant apart from their work at the jail.
Caldwell testified that he saw applicant crying in the fetal position in the corner of his cell. After
applicant was taken to the emergency room and had his medication changed, Caldwell noticed
substantial improvement in his demeanor. Wallendorf corroborated Caldwell’s account, but he also
observed that applicant was disoriented, talking to himself, hallucinating, hiding under a mattress,
and trying to kill himself by putting his head in the toilet. In Wallendorf’s affidavit, he stated, “It
was my belief that he was initially over[-]medicated and clearly was not himself.”
The medical records included in the habeas record indicate applicant was seeing doctors for
depression several years before the assault. The habeas judge did not make fact findings detailing
applicant’s mental status before the assault but found only that applicant “had a history of mental-
health issues.”10 The record does support that applicant was diagnosed in 2003 and 2004 with
dysthymic disorder, generalized anxiety disorder, and major depressive disorder severe without
psychotic behavior. Applicant was prescribed a number of medications, including, but not limited
to, Prozac, Wellbutrin, Xanax, Paxil, and Ambien. During the course of his treatment, his
medications and the dosages were changed often. The medical records, which span nearly 150
pages, do not indicate that any of applicant’s doctors were concerned with his sanity or appreciation
of right and wrong. None of applicant’s doctors testified as to his mental condition.
Applicant relies on psychiatrist Dr. Jack Ferrell’s expert opinion to support his position that
insanity was a viable defense and should have been raised at trial. From his review of applicant’s
medical records and conversations with applicant, his friends and family, and a few of applicant’s
doctors, Dr. Ferrell concluded that, at the time of the assault, applicant suffered from a severe mental
10
Findings and Conclusions at 2.
HOWARD — 14
disease or disorder—major depressive disorder with major anxiety, a significant sleep disorder, and
paranoia—which most likely prevented applicant from conforming his conduct to the law and
impaired his ability to appreciate right and wrong. In his affidavit, Dr. Ferrell notes applicant’s
increasingly frequent misuse and abuse of his medication in the months before the assault occurred
and acknowledges that this could have contributed to his conduct. Dr. Ferrell states that applicant
is “using as much as 3-4 times his prescribed dosage of Xanax to calm himself down.” Dr. Ferrell
also noted that applicant’s “sudden and remarkable improvement” after his medication regime was
altered (and after the assault), “gives resounding testimony of the impact of drugs that may have been
harmful to him and contributory to his conduct versus those results of simply prescribing and using
medication that was appropriate for his needs.” His affidavit further observes, “At times, when not
on his medications, [applicant] did not have any problems . . . .”
While in custody, applicant was taken to Hill Country Memorial Hospital. According to the
hospital records dated September 13, 2004, applicant took a large amount of Xanax before
committing the assault. After having taken Xanax and Ambien for eight years, his use abruptly
stopped when he went to jail. The records further indicate that applicant reported hallucinations and
anxiety attacks after two days in jail. He denied ever hallucinating before. The treating physician’s
clinical impression of applicant’s condition was primarily benzodiazepine withdrawal and
secondarily “acute psychosis (BZD [benzodiazepine] withdrawal vs. acute schizophrenia vs.
schizoaffective disorder.” The medical records from the Hill Country Community MHMR Center
also strongly indicate that excessive Xanax contributed to applicant’s actions the night of the assault.
The records note that applicant “took 5 [Xanax] (1 every 30 minutes)” on the day of the assault.
They also contain a notation that he “binged” on Xanax and consumed an amount that could
HOWARD — 15
intoxicate. This is echoed elsewhere in the records: “Mr. Howard admits to taking as much as 5
Xanax the day he attacked his family [and] admitted he had done this several times in the past
month.” The doctor concluded that “benzodiazepine and Ambien abuse appear significant.”
Applicant has not established a reasonable probability that the jury would have found that
he was insane at the time of the offense, and therefore he does not establish a reasonable probability
that the result of the guilt phase of his trial would have been different. The trial and habeas records
are replete with evidence of applicant’s misuse of prescription drugs in contrast to the minimal
evidence that applicant relies upon to claim that insanity was a viable defense at trial. Rather, the
sum of the evidence suggests it is more likely that, on the night of the assault, applicant was
intoxicated as a result of over-medicating himself with Xanax and Ambien and that his bizarre
behavior in jail was attributable to medication withdrawal. However, “[v]oluntary intoxication does
not constitute a defense to the commission of a crime,” and “Texas Penal Code § 8.04(a) bars the
use of evidence of voluntary intoxication to negate the culpable mental state of a crime.”11 Because
the record does not support a finding that applicant was prejudiced at the guilt phase of trial by
counsels’ failure to raise an insanity defense, it also does not support a finding of prejudice at the
guilt phase with respect to his three related insanity-defense claims—failing to have mental-health
experts appointed, failing to investigate an insanity defense with experts, and failing to properly file
a business-record affidavit to introduce applicant’s medical records.
Nevertheless, the same statute that prevents intoxication-induced insanity from being a
defense at the guilt stage of trial permits such insanity to be considered in mitigation of punishment:
11
TEX . PENAL CODE § 8.04(a); Davis v. State, 313 S.W.3d 317, 328-29 (Tex. Crim. App.
2010)
HOWARD — 16
Evidence of temporary insanity caused by intoxication may be introduced by the
actor in mitigation of the penalty attached to the offense for which he is being tried
. . . . When temporary insanity is relied upon as a defense and the evidence tends to
show that such insanity was caused by intoxication, the court shall charge the jury in
accordance with the provisions of this section.12
Trial counsel requested a jury instruction regarding voluntary intoxication at the punishment stage
of trial, but that instruction was denied, and the denial was upheld on appeal because the record did
not contain evidence to raise the issue of insanity.13 Our reason for rejecting applicant’s guilt-stage
claim—that applicant’s insanity was the result of voluntary intoxication—logically implicates the
issue of whether counsel was ineffective at the punishment stage.
Applicant received the maximum punishment—twenty years—for a second-degree felony,14
and he has no prior convictions. The State introduced evidence of quite a few extraneous offenses,
while applicant introduced evidence designed to show that he was a kind and loving father who was
simply unable to control himself while on prescription drugs and alcohol.15 Although the habeas
judge’s recommendation that applicant receive a new trial arguably includes a recommendation that
applicant should receive a new punishment hearing, we remand the case to the habeas judge for
12
Id., § 8.04(b), (c).
13
Howard v. State, 239 S.W.3d at 365. In his direct appeal, applicant also raised an
ineffective-assistance claim based upon counsel’s failure to introduce records that applicant abused
Xanax and had taken it near the time of the offense, but the court of appeals determined that
applicant failed to introduce any evidence that applicant was temporarily insane as a result. Id. at
367. Through habeas, applicant has expanded the record to show that such evidence could have been
discovered and introduced. See Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997)
(rejection of ineffective-assistance claim on direct appeal does not bar relitigation of claim on habeas
corpus to the extent that applicant seeks to gather and introduce additional evidence not contained
in the direct-appeal record).
14
See TEX . PENAL CODE § 12.33(a).
15
See Howard, 239 S.W.3d at 367-68.
HOWARD — 17
findings of fact on whether applicant was prejudiced with respect to the issue of punishment.
Delivered: September 11, 2013
Do not publish
Howard, Ex Parte Michael Dee
Combined Opinion