Opinion
No. 05-04-00967-CR
Opinion issued August 18, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F03-50641-WJ. Affirmed.
Before Justices BRIDGES, MOSELEY, and LANG-MIERS.
OPINION
Harold McCray appeals his aggravated assault conviction. A jury convicted appellant, and the trial court sentenced him to twenty-seven years' confinement. In three points of error, appellant complains the prosecutor's misconduct violated his rights under the state and federal constitutions and he was denied effective assistance of counsel. We affirm the trial court's judgment. Because appellant does not challenge the sufficiency of the evidence to support his conviction, only a brief recitation of the facts is necessary. On April 17, 2003, Lorenzo Winn was outside his house cleaning his car when appellant walked past. Winn knew appellant and had tried to help him with odd jobs, food, and clothes. Some men nearby shouted at appellant, saying "Look at that fool going down the street." Appellant, holding a knife and muttering to himself, walked past Winn's car and threw the knife across a field and over by the car. Appellant left but returned about ten minutes later with a baseball bat which he used to hit Winn on the head. Appellant ran away, but police later arrested him about a block away. Appellant was convicted of aggravated assault, and this appeal followed. In his first and second points of error, appellant complains of the prosecutor's misconduct in eliciting evidence from the arresting officers that appellant had not claimed self defense after he was placed in custody. However, appellant failed to object to the prosecutor's actions at trial. Accordingly, he has failed to preserve any error for our review. See Ortiz v. State, 577 S.W.2d 246, 249 (Tex.Crim.App. 1979); Montoya v. State, 43 S.W.3d 568, 572 (Tex.App.-Waco 2001, no pet.). We overrule appellant's first and second points of error. In his third point of error, appellant complains his trial counsel was ineffective in failing to object to the prosecutor's actions, thereby failing to preserve for our review appellant's complaints regarding the prosecutor's actions. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on an ineffective assistance of counsel claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id. at 813. The record in this case is silent as to trial counsel's strategy in failing to object to the prosecutor's actions. Therefore, appellant has failed to rebut the presumption that this was a reasonable decision. See id. at 814. Further, we cannot conclude a reasonable probability exists that, but for trial counsel's failure to act, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. Under the facts and circumstances of this case, we cannot conclude appellant received ineffective assistance of counsel. We overrule appellant's third point of error. We affirm the trial court's judgment.