Foster, Ajah Marie, PD-0963-15

Appellant Ajah Foster (then 17) pled guilty to assault of a public servant and received four years deferred adjudication; the State later moved to adjudicate after an incident involving her boyfriend, Ronald Volley.
At the adjudication hearing Volley recanted his initial statement that Foster stabbed him with a box cutter, testified that he had lied and then offered multiple inconsistent accounts (including punching a window and jumping through it).
Investigator Raul Abdala testified about Volley’s out-of-court recorded statement and hospital/incident reports; Abdala also expressed that he found Volley credible and that injuries were consistent with a box cutter.
Trial counsel objected briefly during Abdala’s testimony but did not exclude Abdala’s recounting of Volley’s prior statements; the State’s primary affirmative evidence of the assault was those prior statements.
The trial court adjudicated Foster guilty and sentenced her to three years’ imprisonment; Foster appealed, arguing ineffective assistance for failing to object to hearsay used as substantive evidence rather than impeachment.
The Fourteenth Court of Appeals affirmed, holding counsel’s failure to object could have been a reasonable strategy to undermine Volley’s credibility; Foster did not file a motion for new trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was trial counsel ineffective for failing to object to investigator Abdala’s testimony repeating Volley’s out-of-court statements (hearsay) used as substantive evidence?	Counsel was ineffective because the only substantive evidence of guilt was inadmissible hearsay that could only be used for impeachment; no plausible strategy justified permitting it as affirmative evidence.	Failure to object could reflect legitimate strategy to present Volley’s many inconsistent prior statements to discredit him; absent a motion for new trial, counsel should be afforded the presumption of reasonable strategy.	Court affirmed: appellant failed to show counsel’s performance was so deficient that no competent attorney would have acted so; plausible strategic reasons existed, so first Strickland prong not met.

Jernigan v. State, 589 S.W.2d 681 (Tex. Crim. App. 1979) (impeachment evidence cannot be used as substantive proof absent an exception)
Smith v. State, 520 S.W.2d 383 (Tex. Crim. App. 1975) (same principle regarding impeachment vs substantive use)
Arrick v. State, 107 S.W.3d 710 (Tex. App.—Austin 2003) (discussing limits on using prior inconsistent statements as substantive evidence)
Ramirez v. State, 987 S.W.2d 938 (Tex. App.—Austin 1999) (holding no plausible strategy justified failing to object when prior statement was primary evidence of guilt)
Owens v. State, 916 S.W.2d 713 (Tex. App.—Waco 1996) (counsel ineffective where only evidence of guilt was inadmissible prior statement)
Trevino v. Thaler, 133 S. Ct. 1911 (2013) (recognizing practical difficulties in developing trial-record-based claims via motion for new trial in Texas)