Opinion
No. 01-04-01121-CR
Opinion Issued October 6, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 337th District Court, Harris County, Texas, Trial Court Cause No. 976774.
Panel consists of Chief Justice RADACK, and Justices ALCALA and BLAND.
MEMORANDUM OPINION
A jury found appellant, Steven Kent Bass, guilty of the felony offense of driving while intoxicated ("DWI"). After finding true one punishment enhancement paragraph, the jury assessed punishment at twelve years' confinement. On appeal, Bass contends he received ineffective assistance of counsel. We affirm.
Facts
On February 7, 2004, a police officer began tailing Bass's vehicle at a Baytown intersection. The officer saw Bass drive recklessly, and decided to follow Bass into an apartment complex parking lot. Bass remained inside his car while the officer waited for back-up. When another officer arrived, the two officers approached Bass's car. They viewed Bass sleeping in his car, and woke him. The officers smelled a strong scent of alcohol on Bass and noticed four empty beer bottles in his car. The officers arrested Bass for DWI. Bass pleaded not guilty to the felony charges and a jury trial ensued. During the punishment phase of trial, the State introduced evidence that Bass has seven prior convictions for DWI.Standard of Review
To show ineffective assistance of counsel, a defendant must demonstrate (1) his counsel's performance was deficient; and (2) a reasonable probability exists that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068 (1984). The first prong of Strickland requires the defendant to show that counsel's performance fell below an objective standard of reasonableness. Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Thus, the defendant must prove by a preponderance of the evidence that his counsel's representation objectively fell below professional standards. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). The second prong requires the defendant to show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 693-94, 104 S. Ct. at 2068; see also Andrews, 98 S.W.3d at 102. The Texas Court of Criminal Appeals has observed that the "purpose of this two-pronged test is to judge whether counsel's conduct so compromised the proper functioning of the adversarial process that the trial cannot be said to have produced a reliable result." Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001); see also Thompson, 9 S.W.3d at 812-13 ( citing McFarland v. State, 845 S.W.2d 824, 843 (Tex.Crim.App. 1992)). A reviewing court, however, "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. "Any allegation of ineffectiveness must be firmly founded in the record, and the record affirmatively must demonstrate the alleged ineffectiveness." Thompson, 9 S.W.3d at 813 ( citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996)). Failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffective assistance claim. Andrews, 159 S.W.3d at 101; Thompson, 9 S.W.3d at 813.Ineffective Assistance of Counsel
Bass contends his trial counsel's failure to object to statements made by the State in closing argument constitutes ineffective assistance of counsel. During the closing argument of the punishment phase of the trial, counsel for the State said to the jury:Now, those are the minor details. Let's talk about the serious things. Let's talk about his criminal history. One thing that I want you to look at is that Galveston County felony case. It's a yellow sheet of paper. And go and look at the conditions of probation that he was assessed. Because whatever your position is on drunk driving, whether it's a crime or a disease, help starts at home. You've got to want help before you can solve the problem. And certainly you can tell he hasn't done it by himself.
You can infer from the evidence that there is no treatment, no A.A., nothing because there is no evidence of that. They would have brought that to you if they could bring a psychologist or somebody in to say, "He's getting treatment. He's attending A.A. He's doing a good job. He wants to address the problem." That's a logical inference from the evidence that they put on because it is very conspicuous by its absence.
So, you can infer from the evidence that he does not think he has a drinking problem or a driving problem. You can hold that against him and you should hold that against him when you consider what his sentence is.(emphasis added). Bass maintains that the State improperly invited the jury to make inferences based on evidence not presented, and the State improperly referenced his choice not to exercise his constitutionally protected right against self-incrimination. Bass asserts that his trial counsel's failure to object to these statements cannot be justified by any reasonable trial strategy, and these statements prejudiced him; thus, his trial counsel's inaction amounted to ineffective assistance of counsel. If the record on appeal is undeveloped and does not show the motives behind trial counsel's actions, then the defendant cannot be said to have overcome the presumption that his counsel's actions were strategic. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). Here, the record reflects that, during closing argument, the State asked the jury to infer from the evidence that Bass was not seeking alcohol treatment and that Bass does not think he has a drinking or driving problem. Assuming that the State's statements were improper, the record does not reflect trial counsel's basis for her failure to object to them. We cannot speculate beyond the record provided and must presume that the actions taken by Bass's trial counsel were part of a strategic plan for representing her client. Young v. State, 991 S.W.2d 835, 837-38 (Tex.Crim.App. 1999). We therefore are unable to conclude that trial counsel's actions were unreasonable, and thus deficient. Bass maintains that even without a record to establish trial counsel's reasons for not objecting, no reasonable trial strategy could justify counsel's actions, and thus counsel's assistance is ineffective. Bass cites Vasquez v. State in support of his position that a record of motives is not vital in such instances. 830 S.W.2d 948, 950-51 (Tex.Crim.App. 1992) (per curiam). A single egregious error of omission or commission may establish ineffective assistance of counsel, even in the absence of a record. Thompson, 9 S.W.3d at 813. The reviewing court, however, must look to the "totality of the representation and the particular circumstances of each case." Id. In doing this, the reviewing court must recognize the strong presumption that counsel's performance fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. Bass has not overcome this presumption. The actions of trial counsel that Bass calls into question are not so egregious as to undermine his entire representation. Although asking the jury to infer that Bass was not seeking alcohol treatment without evidence to support it may be improper, not objecting to these statements was not per se detrimental to Bass's sentencing. Cf. Andrews, 159 S.W.3d at 102 (holding that defense counsel's failure to object to State's misstatement of law concerning stacking of sentences was detrimental to client and thus constitutes ineffective assistance of counsel even without record explaining counsel's motivations). Moreover, trial counsel's decision not to object to these statements could be rationalized through strategic motivations. See, e.g., Garcia v. State, 887 S.W.2d 862, 881 (Tex.Crim.App. 1994) (holding that trial counsel's failure to request limiting instruction did not constitute ineffective assistance because trial counsel testified that he did not want to draw more attention to incriminating evidence), overruled on other grounds by Hammock v. State, 46 S.W.3d 888, 893 (Tex.Crim.App. 2001); Duren v. State, 87 S.W.3d 719, 733-34 (Tex.App.-Texarkana 2002, no pet.) (stating that trial counsel's failure to object to testimony may be explained as reasonable trial strategy not to draw jury's attention to testimony). Because counsel's failure to object could represent a reasonable trial strategy, we conclude that Bass has not met the first prong of Strickland.