Opinion
Number 13-01-479-CR.
Opinion Delivered and Filed February 13, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the 163rd District Court of Orange County, Texas.
Before Justices YAÑEZ, CASTILLO and BAIRD.
Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).
OPINION
Appellant was charged by indictment with the offense of aggravated sexual assault. A jury convicted appellant of the charged offense and assessed punishment at twenty years confinement in the Texas Department of Criminal Justice — Institutional Division. We affirm. Appellant's sole point of error contends trial counsel was ineffective. The right to the effective assistance of counsel is guaranteed to criminal defendants by the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 10 of the Texas Constitution. The standard established in Strickland v. Washington, 466 U.S. 668, 684 (1984), is utilized when reviewing ineffective assistance of counsel claims under either the United States or the Texas constitutions. Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). The Supreme Court in Strickland outlined a two-step analysis. First, the reviewing court must decide whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. If counsel's performance fell below this standard, the reviewing court must decide whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. at 687; Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex.Crim.App. 1993); Boyd v. State, 811 S.W.2d 105, 109 (Tex.Crim.App. 1991). The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998); Riascos v. State, 792 S.W.2d 754, 758 (Tex.App.-Houston [14th Dist.] 1990, pet. ref'd). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded and affirmatively demonstrated in the appellate record. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996); Stone v. State, 17 S.W.3d 348, 350 (Tex.App.-Corpus Christi 2000, pet. ref'd); Jimenez v. State, 804 S.W.2d 334, 338 (Tex.App.-San Antonio 1991, pet. ref'd). When handed the task of determining the validity of a defendant's claim of ineffective assistance of counsel, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App. 1984). Generally, the trial record will not be sufficient to establish an ineffective assistance of counsel claim. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999); Kemp v. State, 892 S.W.2d 112, 115 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). This is true because normally a silent record cannot rebut the presumption that counsel's performance was the result of sound or reasonable trial strategy. Strickland, 466 U.S. at 688; Stafford v. State, 813 S.W.2d 503, 506 (Tex.Crim. App. 1991). However, a defendant may rebut the presumption by providing a record from which the appellate court may determine that trial counsel's conduct was not based upon a strategic or tactical decision. Jackson v. State, 877 S.W.2d 768, 771-72 (Tex.Crim.App. 1994); Bohnet v. State, 938 S.W.2d 532, 536 (Tex.App.-Austin 1997, pet. ref'd). This record may be provided via a motion for new trial hearing. Appellate counsel filed a motion for new trial. At the hearing on that motion, appellate counsel stated: (a) appellant was confined in the Institutional Division of the Texas Department of Criminal Justice and, therefore, not present for the hearing; (b) appellant indicated that trial counsel was ineffective for failing to present witnesses to "contradict some of the evidence that occurred at trial;" and, (c) there was some newly discovered evidence. However, appellant did not provide counsel with a list of the potential witnesses, and because appellant was not present, he could not establish the testimony of those witnesses. No evidence was offered at the hearing. The trial judge denied the motion. As noted above, the defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson, 973 S.W.2d at 956. We hold the statements of appellate counsel at the motion for new trial hearing do not establish the allegations of ineffective assistance of counsel. Beyond those statements, the allegations are not firmly founded and affirmatively demonstrated in the appellate record. McFarland, 928 S.W.2d at 500; Stone, 17 S.W.3d at 350. Consequently, we are confronted with a record that does not substantiate the allegations of ineffective assistance of counsel. Because the basis for appellant's ineffective assistance of counsel contentions is not found in the appellate record, we must reject them at this time. Appellant's sole point of error is overruled. The judgment of the trial court is affirmed.
Counsel also argued the evidence was insufficient to support the jury's verdict, but that argument is not relevant to this appeal.
This opinion will not prevent appellant from raising these claims in an application for writ of habeas corpus, should he choose to pursue that avenue of relief. Ex parte Varelas, 45 S.W.3d 627, 629-30 (Tex.Crim.App. 2001).