Mitzi Gail Allgor v. State, 12-15-00032-CR

Appellant Mitzi Gail Allgor was convicted by a jury of Resisting Arrest (Tex. Penal Code §38.03) and Possession of Marijuana (Tex. Health & Safety Code §481.121); convictions later sentenced by the court to 240 days (resisting) and 120 days (possession), concurrent.
Charged conduct: officer observed reckless driving, attempted arrest after discovery of marijuana; Appellant struggled, discarded and attempted to destroy marijuana, and resisted handcuffing; lab confirmed marijuana.
Appellant elected not to present evidence at guilt-innocence; at punishment she testified about family/earning means but admitted a lengthy prior criminal history and earlier drug/federal convictions.
No motion for new trial was filed; appeal raised ineffective-assistance-of-counsel (IAC) claims against trial counsel for voir dire failures, a brief opening statement, and alleged misstatements regarding punishment range and probation eligibility.
The State argued Appellant failed both Strickland prongs: no record explaining counsel’s strategy, and no reasonable probability the alleged errors changed the trial or sentence given overwhelming evidence and bad criminal history.

Issue	Plaintiff's Argument	Defendant's Argument	Held
IAC for failure to object during voir dire	Counsel failed to object to impermissible questions/statements during voir dire	State: Appellant points to no specific objectionable voir dire; record contains no basis to show deficient performance or prejudice	Court held no showing of deficient performance or prejudice; claim unsupported by record
IAC for brief opening statement	Counsel’s very short opening demonstrated inadequate representation and harmed Appellant's case	State: Opening length is discretionary and likely strategic given defense theory and decision not to present evidence	Court held counsel’s brief opening falls within strategic choices; no prejudice shown
IAC for not correcting trial court's comment about a 90‑day minimum for enhanced resisting	Counsel failed to correct judge’s apparent misstatement about minimum punishment for resisting with priors	State: Comment was hypothetical/ambiguous; even if error, sentence (240 days) exceeded 90 days and evidence justified sentence, so no prejudice	Court held no reversible IAC—no reasonable probability outcome would differ
IAC for misstating probation eligibility	Counsel misstated that Appellant was not probation‑eligible	State: Any misstatement related to jury probation limitations; judge could still grant probation and, regardless, Appellant’s record and conduct made probation unlikely	Court held no prejudice shown and presumption of reasonable strategy not overcome

Bohnet v. State, 938 S.W.2d 532 (Tex. App.—Austin 1997) (IAC claims require record showing counsel’s reasons)
Black v. State, 816 S.W.2d 350 (Tex. Crim. App. 1991) (Strickland standard applies to Texas criminal trials)
Cannon v. State, 668 S.W.2d 401 (Tex. Crim. App. 1984) (appellant bears burden to prove IAC)
Darden v. Wainwright, 477 U.S. 168 (U.S. 1986) (standard for prejudice under ineffective-assistance review)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong test for ineffective assistance of counsel)
Ex parte Kunkle, 852 S.W.2d 499 (Tex. Crim. App. 1993) (burden on appellant to prove IAC)
McFarland v. State, 845 S.W.2d 824 (Tex. Crim. App. 1992) (need for record to show reasons for counsel’s actions)
Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) (Strickland applied to punishment phase)