No. 14-02-00422-CR
Opinion filed July 24, 2003. Do Not Publish — Tex.R.App.P. 47.2(b).
On Appeal from the 248th District Court, Harris County, Texas, Trial Court Cause No. 878,092.
Panel consists of Justices ANDERSON, SEYMORE, and GUZMAN.
JOHN S. ANDERSON, Justice.
After a bench trial, appellant was convicted of the felony offense of unlawful possession of a firearm by a felon. See Tex. Pen. Code Ann. § 46.04 (Vernon Supp. 2002). Alleging six points of error, he asserts insufficient evidence, abuse of discretion, and ineffective assistance of counsel. We affirm.
PROCEDURAL AND FACTUAL HISTORY
On February 8, 2001, Officer Raoul Yzquierdo, Jr. of the Houston Police Department was on patrol when he "ran a [license] plate" on a vehicle that came back with an expired registration. The officer noticed there were three people in the vehicle: two in the front seat and one in the back. When Yzquierdo turned on his emergency lights to pull the vehicle over, he observed the backseat passenger — appellant Michael Perry Crofton — reaching down toward the floorboard. Approaching the vehicle, Yzquierdo asked the driver, Kimble Guilbeaux, for his driver's license and ran a check on the license. Upon discovering Guilbeaux had outstanding warrants, Yzquierdo took the driver into custody. Once the officer placed Guilbeaux in custody, he returned to the vehicle and asked the front-seat passenger, Kevin Richardson, for his identification. Upon receipt of Richardson's driver's license, Yzquierdo ran a second check and discovered Richardson, too, had open warrants. Yzquierdo then took Richardson into custody. Returning to the vehicle a third time, Yzquierdo asked appellant for his identification. Appellant answered that his name was "Michael Washington" and gave a date of birth that failed to match his alleged age. Suspicious, the officer ran a check on the information he was given and got a warrant response for appellant. Yzquierdo then called another police unit for backup. When Officer J.R. Roberts arrived at the scene, Yzquierdo and Roberts questioned appellant about his identity and took him into custody for having given false information. See Tex. Pen. Code Ann. § 38.02(b) (Vernon 1994). Additionally, the officers searched Guilbeaux's vehicle and recovered a .380 semiautomatic pistol from underneath the rear portion of the front passenger seat. They also found ammunition in appellant's pocket that would fit the firearm. Because appellant had previously been convicted of burglary of a motor vehicle and was still on parole, appellant was charged by indictment in cause number 878,092 with the felony offense of possession of a firearm by a felon. See Tex. Pen. Code Ann. § 46.04(a) (Vernon Supp. 2003). Following a bench trial to the court in March, 2002, appellant was found guilty and entered pleas of true to the enhancement allegations contained in the indictment. The trial court subsequently found the enhancement allegations to be true and assessed appellant's punishment at twenty-eight years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a pro se motion for new trial on April 5, 2002, followed by a timely notice of appeal. ISSUES ON APPEAL
Appellant asserts the evidence is legally insufficient (1) to support his conviction for the offense of possession of a weapon by a felon; (2) to prove he previously committed the offense of burglary of a motor vehicle in cause number 429,336; and (3) to prove he is the same person who was released on parole on April 1, 1999 in cause numbers 429,336 and 629, 121. Appellant further asserts (4) the evidence is factually insufficient to support his conviction for possession of a weapon by a felon; (5) the trial court erred in denying his motion for new trial based on ineffective assistance of counsel; and (6) his defense counsel rendered ineffective assistance of counsel by failing to file a motion to suppress evidence. I. LEGAL SUFFICIENCY
In his first, fifth, and sixth points of error, appellant argues the evidence presented at trial was legally insufficient to support his conviction for unlawful possession of a firearm by a felon. First, he asserts the evidence was insufficient to prove he "possessed" the firearm found in Guilbeaux's car; next, he asserts the evidence was insufficient to prove that he was a "felon" as alleged in his indictment; and finally, he asserts the evidence was legally insufficient to prove he was the same person who allegedly was released on parole April 1, 1999. A. Standard of Review
To determine legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 99 S.Ct. 2781, 2789 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex.Crim.App. 1983). This standard of review applies to cases involving both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). The trial court, as fact finder, is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses' testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App. 1981). The fact finder may accept one version of the facts and reject another version, or may reject any part of a witness' testimony. Id. The fact finder may also reasonably infer facts from the evidence presented, credit the witnesses it chooses to, disbelieve any or all of the evidence or testimony proffered, and weigh the evidence or testimony as it see fit. Broden v. State, 923 S.W.2d 183, 189-90 (Tex.App.-Amarillo 1996, no pet.). B. Discussion
In his first, fifth, and sixth points of error, appellant argues the evidence presented at trial was legally insufficient to support his conviction for possession of a firearm by a felon. We disagree. 1. There was legally sufficient evidence to find appellant "possessed" the firearm found in Guilbeaux's car.
A person commits unlawful possession of a firearm if he has been convicted of a felony and possesses a firearm after conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later. Tex. Pen. Code Ann. § 46.04(a)(1) (Vernon Supp. 2003). To prove the "possession" element of the offense, sufficiency of the evidence is analyzed under the rules adopted for determining sufficiency of the evidence in cases of possession of a controlled substance. Corpus v. State, 30 S.W.3d 35, 37 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). Therefore, the State is required to prove (1) that the accused exercised actual care, custody, control or management over the firearm; (2) that he was conscious of his connection with it; and (3) that he possessed the firearm knowingly or intentionally. Nguyen v. State, 54 S.W.3d 49, 52 (Tex.App.-Texarkana 2001, pet. ref'd), citing Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). Whether direct or circumstantial evidence is used, the State must establish the accused's connection with the firearm was more than just fortuitous. Brown, 911 S.W.2d at 747. When the firearm is not found on the accused's person or is not in the accused's exclusive possession, as here, additional facts must affirmatively "link" the accused to the contraband. Id.; Corpus, 30 S.W.3d at 38; McMillon v. State, 940 S.W.2d 767, 768-69 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd). This "affirmative link" need not be so strong that it excludes every other reasonable hypothesis except the defendant's guilt. Brown, 911 S.W.2d at 748. Factors that may establish an "affirmative link" between the accused and contraband include whether (1) the contraband was in a car driven by the accused; (2) the contraband was in a place owned by the accused; (3) the contraband was conveniently accessible to the accused; (4) the contraband was in plain view; (5) the contraband was found in an enclosed space; (6) the contraband was found on the same side of the car as the accused; (7) the conduct of the accused indicated a consciousness of guilt; (8) the accused had a special relationship to the contraband; (9) occupants of the automobile gave conflicting statements about relevant matters; and (10) affirmative statements connect the accused to the contraband. Corpus, 30 S.W.3d at 38. The number of factors present is not as important as the logical force the factors have in establishing the elements of the offense. Id. Here, the State proffered the following to establish an "affirmative link" between appellant and the firearm found in Guilbeaux's car: (1) testimony that, as soon as Yzquierdo activated his emergency lights, he saw appellant make a movement toward the floorboard where the pistol was recovered; (2) testimony that appellant gave Yzquierdo false information when asked to identify himself; (3) testimony that appellant seemed nervous, talkative, and jittery; (4) testimony that a .380 semi-automatic pistol was recovered from the area in which appellant made his gesture; (5) testimony that the pistol found in Guilbeaux's car was lying on its left side with the barrel pointing toward the front of the vehicle, as if a backseat passenger had placed it there; (6) testimony that Roberts found the firearm in the spot immediately in front of where appellant's feet had been; (7) testimony that neither Guilbeaux nor Richardson could have reached the pistol where it was found; and (8) testimony that ammunition was found in appellant's pocket that fit the pistol in question. Because the "logical force" of these facts, in combination, affirmatively links appellant to the firearm, we conclude that, when viewed in the light most favorable to the verdict, a rational trier of fact could have reasonably found appellant had knowledge of, and control over, the firearm. See Nguyen, 54 S.W.2d at 55 (evidence was legally sufficient to support an "affirmative link" where (1) officer saw defendant lean between his automobile's seats after the officer activated his flashers; where defendant pretended to be asleep when he was not in fact sleeping; where the officer found the firearm in an unexposed spot behind the driver's seat; and where the officer said the position of the gun was consistent with a passenger having placed it there.). Accordingly, appellant's first point of error is overruled. 2. There was legally sufficient evidence to find appellant was previously convicted of the offense of burglary of a motor vehicle.
In his fifth point of error, appellant asserts the evidence was legally insufficient to prove that he was previously convicted of the offense of burglary of a motor vehicle on December 5, 1986, as alleged in the indictment. Because his judgment and sentence reflect a date of conviction of January 7, 1986, and because December 5, 1986 is the date upon which the mandate of affirmance for his conviction for burglary was received from the clerk of the Court of Criminal Appeals, he argues, his indictment was incorrect and he cannot be convicted as charged. We disagree. First, the specific date of appellant's prior felony conviction is not an element of the offense of unlawful possession of a firearm by a felon. See Tex. Pen. Code Ann § 46.04(a) (Vernon Supp. 2003). Rather, it is defendant's status as a felon that is important, not the date upon which the prior felony conviction occurs. State v. Mason, 980 S.W.2d 635, 640 (Tex.Crim.App. 1998). Second, a conviction from which an appeal is taken is not considered final until the conviction is affirmed and the court's mandate of affirmance becomes final. Russell v. State, 790 S.W.2d 655, 657 (Tex.Crim.App. 1990). Thus, appellant's indictment was correct because his original judgment and sentence show he was found guilty on January 7, 1986 and sentenced on January 8, 1986, and that the mandate of affirmance for his conviction was issued December 2, 1986 and received from the Clerk of the Court of Criminal Appeals on December 5, 1986. Because it was appellant's status as a felon that was material to his conviction for possession of a firearm as a felon and not the date upon which he was convicted, and because appellant's burglary conviction did not in fact become final until December 5, 1986, we find the evidence was legally sufficient to prove appellant was convicted of the offense of burglary of a motor vehicle as alleged in his indictment. Accordingly, we overrule appellant's fifth point of error. 3. There was legally sufficient evidence to find appellant was the same person released on parole April 1, 1999.
In his sixth point of error, appellant asserts the evidence presented at trial was legally insufficient to prove he was the same person alleged by the State to have been released on parole on April 1, 1999. The evidence was therefore insufficient to prove appellant committed the offense of possession of a firearm by a felon, he claims. Appellant's argument is without merit. First, the indictment did not allege — and the State did not seek to prove — that the appellant was released from parole on April 1, 1999; rather, the indictment alleged appellant was released from confinement on April 1, 1999. To prove a defendant's identity as the person named in a certificate of parole, the State may utilize several nonexclusive means. See Littles v. State, 726 S.W.2d 26, 31 (Tex.Crim.App. 1984) (opin. on reh'g) (discussing various methods of proof). Each case must be judged on its individual merits. Id. Methods include witness testimony; the introduction of certified copies of a defendant's judgment and sentence; the introduction of a record of the Texas Department of Criminal Justice or county jail that includes fingerprints of the defendant, supported by expert testimony identifying them as identical with known prints of the defendant; stipulation or judicial admission by the defendant; and photographs. Id. at 31-32. Here, appellant's identity was established by (1) the testimony of a parole officer who identified appellant in open court as the same person whose photo and fact sheet matched the ones contained with the certificate of parole for Michael Perry Crofton; (2) the testimony of a fingerprint expert who testified appellant was the same person identified in the "pen packet" admitted into evidence, which contained the same information as the certificate of parole; and (3) appellant's own admission on cross-examination that, at the time of the offense, he was out on parole for the offenses alleged in the indictment. After reviewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have reasonably found appellant to be the same person who was released from confinement for the offense of burglary of a motor vehicle on April 1, 1999. Therefore, the evidence was legally sufficient to prove appellant committed the offense of possession of a firearm by a felon as charged in the indictment. Accordingly, we overrule appellant's sixth point of error. II. FACTUAL SUFFICIENCY
In his second point of error, appellant asserts the evidence presented at trial was factually insufficient to support his conviction for the offense of possession of a firearm by a felon. A. Standard of Review
To determine factual sufficiency, we view the evidence in a neutral light and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). We must review the evidence weighed by the jury tending to prove the existence of the elemental fact in dispute, and compare it to the evidence tending to disprove that fact. Id. The appellate court may find either that the State's proof of guilt was so obviously weak as to undermine confidence in the jury's determination, or that the finding of guilt was against the great weight and preponderance of the evidence. Id. at 11. When the defendant proffers contrary evidence, we consider whether the proof of guilt, although adequate if taken alone, is greatly outweighed by defendant's proffered evidence. Id. We may disagree with the fact finder's decision, even if probative evidence exists that supports the verdict. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). However, a factual sufficiency review must be appropriately deferential to avoid substituting our judgment for the fact finder's. Id. at 648. We are not free to reweigh the evidence, but must exercise our jurisdiction only to prevent a manifestly unjust result. Id. B. Discussion
Appellant argues that the State's evidence that he was in "possession" of the firearm seized from the vehicle was factually insufficient to support his conviction. We disagree. As stated earlier, the State submitted the following facts to support its claim that appellant was in possession of the firearm found in Guilbeaux's car: (1) appellant made a movement toward the floorboard where the pistol was recovered immediately after Yzquierdo activated his flashers; (2) appellant gave false information when Yzquierdo asked appellant to identify himself; (3) appellant seemed "nervous," "talkative," "suspicious," "jittery," and "like he wanted to run" when Yzquierdo asked him questions; (4) a .380 semi-automatic pistol was recovered from the exact spot below which appellant was seated; (5) neither Guilbeaux, nor Richardson, could have reached the pistol from its location under Richardson's seat; (6) the pistol was positioned in such a way as to indicate a backseat passenger had placed it there; and (7) appellant was carrying bullets in his pocket that were of the same caliber as the firearm. Although the bullets found in appellant's pocket were from a different manufacturer than the ones found in the pistol, and appellant testified he had never seen the pistol before, appellant never offered an explanation as to why he was carrying the bullets or why he was in possession of an altered birth certificate. Moreover, appellant's claim that he was asleep in the backseat of Guilbeaux's car when the vehicle was pulled over is called into doubt by evidence in the record suggesting the three men were in the car "only . . . a short time to go eat gumbo." As the trier of fact, the trial judge was not required to believe appellant's explanation of events. Kirkwood v. State, 488 S.W.2d 824, 826 (Tex.Crim.App. 1973). Indeed, the trial court had the opportunity to evaluate the training and experience of Yzquierdo and Roberts, listen to their testimony, and judge their credibility. The trial court also had the opportunity to observe appellant's demeanor, evaluate his testimony, and determine the weight to give that testimony. The judge's decision to resolve the conflicting views of the evidence in favor of the State does not make the trial court's decision manifestly unjust. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). Because appellant's evidence, viewed in a neutral light, is not so contrary to the overwhelming weight of the evidence as to render the verdict clearly wrong and manifestly unjust or against the great weight and preponderance of the evidence, we conclude the evidence was factually sufficient to support appellant's conviction for possession of a firearm by a felon. See Johnson v. State, 23 S.W.3d at 11. Accordingly, we overrule appellant's second point of error. III. MOTION FOR NEW TRIAL
In his third point of error, appellant asserts the trial court erred in denying his motion for new trial. Because defense counsel failed to interview or subpoena a witness to his alleged offense, appellant claims he received "ineffective assistance of counsel" and was entitled to a new trial. We disagree. A. Standard of Review
A trial court's ruling denying a defendant's motion for new trial is reviewed under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001). The reviewing court does not substitute its judgment for that of the trial court, but rather decides whether the trial court's decision is so arbitrary or unreasonable as to warrant reversal. Id. at 148. The ruling of the trial court is presumed to be correct, and the burden rests on the appellant to establish the contrary. Jensen v. State, 66 S.W.3d 528, 545 (Tex.App.-Houston [14th Dist.] 2002, pet ref'd). B. Pertinent facts
In his amended motion for new trial, appellant alleged that trial counsel rendered ineffective assistance of counsel for failing to interview and subpoena Richardson, the second passenger in the car the night appellant was arrested. On June 5, 2002, the trial court held a hearing to consider appellant's motion for new trial. At the hearing, an affidavit signed by Richardson was admitted into evidence stating that Richardson would have been available — and willing — to testify on appellant's behalf had he been called. Given the chance to testify, Richardson claims, he would have stated he did not see appellant in possession of a firearm the night appellant was arrested. Three attorneys testified at appellant's hearing. First, Joe Varela — appellant's first appointed attorney — testified he had interviewed and subpoenaed Richardson and was of the opinion that Richardson's testimony would have strengthened appellant's defense. Second, Connie Williams — appellant's second appointed attorney — testified he did not interview Richardson, or call him to testify, because appellant expressed doubt as to the value of the testimony and asked him not to. Finally, Brian William Wice, an expert on defense strategy and representation, testified Williams' decision not to investigate or interview Richardson was "ineffective assistance of counsel" because a trial attorney's "duty to investigate is independent of a client's stated desire." The trial court denied appellant's motion for new trial. C. Discussion
When a defendant presents evidence on his trial counsel's ineffectiveness at a hearing on a motion for new trial, the appellate court reviews the trial court's application of the test pronounced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Appellant must prove (1) that his counsel's representation was deficient; and (2) that the deficient performance was so serious that it prejudiced his defense. Id., 466 U.S. at 686, 104 S.Ct. at 2064; see also Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Thus, appellant must prove by a preponderance of the evidence that counsel's representation fell below the standard of prevailing professional norms, and that there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. Id. Indeed, appellant must identify the specific "acts or omissions of counsel that are alleged" to constitute ineffective assistance and affirmatively prove that they fell below the professional norm for reasonableness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996) ( citing Strickland, 466 U.S. at 690, 104 S.Ct. at 2066). Here, appellant alleges trial counsel rendered ineffective assistance of counsel when he failed to interview Richardson and failed to subpoena Richardson to testify at trial. Because Williams never properly "investigated" the value of Richardson's testimony, he argues, Williams' representation was deficient and appellant was entitled to a new trial. See McFarland, 928 S.W.2d at 502 (counsel has a duty to make "reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary"); Ex parte Welborn, 785 S.W.2d 391, 393 (Tex.Crim.App. 1990) (counsel has a responsibility to "seek out and interview potential witnesses"); Butler v. State, 716 S.W.2d 48, 54 (Tex.Crim.App. 1986) (counsel has a duty to make an independent investigation of the facts of his client's case). We disagree. First, evidence suggests appellant did not want Richardson to testify. Williams testified that appellant "didn't know what [Richardson's] testimony would be and . . . was afraid to call him." When a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or harmful, "counsel's failure to pursue those investigations may not later be challenged as unreasonable." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Second, evidence suggests appellant was not any easy client to please. Varela, appellant's first attorney, testified appellant was a "difficult client"; appellant terminated Varela's representation on the very day his trial was to begin; appellant threw a table across the courtroom during one of many "outbursts"; and five deputies had to restrain appellant at one point during the proceedings. Because "[t]he reasonableness of counsel's actions may be . . . substantially influenced by the defendant's own . . . actions," such facts are pertinent to evaluating Williams' representation. Id. Third, evidence suggests Varela, appellant's first attorney, may have been fired for planning to call Richardson. When Varela testified appellant's decision to represent himself was made the day of trial, Varela did not offer an explanation as to why appellant chose not to utilize an attorney; thus, one is left to wonder if Varela's plans to call Richardson triggered appellant's firing of Varela. If so, such a link would support a conclusion that Williams necessarily had to seek an alternative strategy to defend appellant in order to continue representing him. Fourth, evidence suggests it was sound strategy for Williams' not to call Richardson. Because Williams and appellant discussed the possibility of Richardson testifying and discussed the possibility of finding other witnesses who knew Guilbeaux and whether he owned a gun — and because appellant expressed fear that Richardson's testimony might be damaging — Williams could very well have concluded he was protecting his client from damaging testimony that would have been admitted had he "opened the door." See Duren v. State, 87 S.W.3d 719, 733 (Tex.App.-Texarkana 2002, no pet.). Indeed, Williams said as much when he testified that, even without Richardson's testimony, he felt "there were not sufficient links in the case" to convict his client and "he had a strong case" for appellant's defense. Finally, evidence suggests Richardson may not have been truthful in his affidavit when he stated he would have been willing to appear on appellant's behalf. Indeed, both the State and Varela subpoenaed Richardson to appear at appellant's first trial court setting; yet Varela cannot "remember nor do [his] notes reflect" that Richardson was actually present at that setting — despite Varela's having determined Richardson to be his key witness. Additionally, the record shows the State repeatedly attempted to subpoena Richardson to appear at appellant's trial — the last time in February, 2002 immediately before appellant's March trial date — yet nothing in the record indicates Richardson appeared in court. After a careful review of the record, we cannot say Williams' representation was deficient. Because appellant has failed to prove the first prong of Strickland, the trial court did not abuse its discretion in denying appellant's motion for new trial on the basis of ineffective assistance of counsel. Accordingly, we overrule appellant's third point of error. IV. INEFFECTIVE ASSISTANCE OF COUNSEL
In his fourth and final point of error, appellant asserts his trial counsel rendered ineffective assistance by failing to file a motion to suppress the ammunition found in appellant's pocket. Because the ammunition was discovered as a result of an improper search and seizure, he argues, the ammunition should not have been admitted into evidence. A. Standard of Review
Counsel is not ineffective per se for failing to file a motion to suppress. Rivera v. State, 981 S.W.2d 336, 339 (Tex.App.-Houston [14th Dist.] 1998, no pet.). An assertion of ineffective assistance of counsel will be sustained only if the record affirmatively supports such a claim. See Ex parte Ewing, 570 S.W.2d 941, 943 (Tex.Crim.App. 1978). Appellant must demonstrate that trial counsel's performance was unreasonable under the prevailing professional norms and that the challenged action was not sound trial strategy. Stafford v. State, 813 S.W.2d 503, 506 (Tex.Crim.App. 1991). B. Discussion
Appellant contends that trial counsel should have filed a motion to suppress on the ground that the ammunition found on appellant was seized pursuant to an illegal search. Without a record to explain trial counsel's rationale, however, appellant cannot substantiate his claim that trial counsel's representation was deficient. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Neither can he substantiate the second prong of Strickland that, "but for" trial counsel's alleged deficient performance, the outcome of his trial would have been different. Id. In appellant's motion for new trial, appellant alleged he was entitled to a new trial on two grounds. First, as discussed above in Section III, he asserted Williams rendered ineffective assistance of counsel when he failed to interview and subpoena Richardson; next, he asserted Williams's performance was deficient because he failed to file a motion to suppress the ammunition. At appellant's motion for new trial hearing, however — when defense counsel had the opportunity to question Williams as to why he had not filed a motion to suppress — appellant abandoned the allegation concerning the search issue. Without a record to explain trial counsel's rationale, there is a "strong presumption that counsel was competent." Perez v. State, 56 S.W.3d 727, 730-31 (Tex.App.-Houston [14th Dist.] 2001, pet ref'd); see also Thompson, 9 S.W.3d at 813. Indeed, to defeat the presumption of reasonable professional assistance, "[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). Here, there is nothing in the record to suggest Williams' failure to file a motion to suppress fell below the professional norm for reasonableness — neither Varela nor Wice testified that Williams should have filed such a motion. Additionally, there is nothing to suggest such a motion would have been granted. Without such evidence, appellant cannot prove the second prong of Strickland — namely, that "but for" Williams' deficient performance, the outcome of the proceeding would have been different. Because there is nothing in the record to suggest Williams' performance was the "product of an unreasoned or unreasonable strategy, or that there was a fair probability that it led to either an unreliable guilty verdict or unjust punishment," we find no ineffective assistance of counsel. Accordingly, we overrule appellant's fourth point of error. Having overruled all of appellant's points of error, we affirm the judgment of the trial court.