Opinion
No. 12-03-00337-CR
Opinion delivered August 11, 2004. DO NOT PUBLISH.
Appeal from the Seventh Judicial District Court of Smith County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
MEMORANDUM OPINION
Willie L. Ray ("Appellant") appeals his forty-five-year sentence imposed following his conviction for aggravated assault. Appellant raises one issue on appeal. We affirm.
BACKGROUND
Appellant was indicted for aggravated assault and pleaded "not guilty." The case was tried before a jury, who found Appellant guilty. Following a trial on punishment, the jury assessed Appellant's punishment at imprisonment for forty-five years. The trial court sentenced Appellant accordingly, and this appeal followed.INEFFECTIVE ASSISTANCE OF COUNSEL
In his sole issue, Appellant argues that he received ineffective assistance of counsel with respect to his trial on punishment. Appellant contends that some of his trial counsel's ineffective representation occurred prior to his trial on punishment, but impacted the punishment he ultimately received nonetheless. Specifically, Appellant argues that his trial counsel was ineffective in that he (1) failed to include in his voir dire examination questions concerning punishment issues, (2) failed to object to evidence of Appellant's prior convictions, (3) failed to object to evidence that Appellant's probation, which stemmed from a prior conviction, had been revoked, and (4) failed to object to statements made by the prosecuting attorney in his closing arguments concerning the sentences received by Appellant for his prior convictions. The proper standard by which to gauge the adequacy of representation by counsel is articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984). See also Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim. App. 1986). The test set forth in Strickland requires a two-step analysis:I. Did the attorney's performance fail to constitute "reasonably effective assistance," i.e., did the defense attorney's representation fall below an objective standard of reasonableness under prevailing professional norms?
I. If so, was there a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings could have been different?See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. The test in Strickland is properly applied to the punishment phase of a non-capital case as well. See Hernandez, 988 S.W.2d at 772. In any case considering the issue of ineffective assistance of counsel, we begin with the strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim. App. 1994). We must presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See id. Appellant has the burden of rebutting this presumption by presenting evidence illustrating why his trial counsel did what he did. See id. Appellant cannot meet this burden if the record does not affirmatively support the claim. See Jackson v. State, 973 S.W.2d 954, 955 (Tex.Crim.App. 1998) (inadequate record on direct appeal to evaluate whether trial counsel provided ineffective assistance); Phetvongkham v. State, 841 S.W.2d 928, 932 (Tex. App.-Corpus Christi 1992, pet. ref'd, untimely filed) (inadequate record to evaluate ineffective assistance claim); see also Beck v. State, 976 S.W.2d 265, 266 (Tex. App.-Amarillo 1998, pet. ref'd) (inadequate record for ineffective assistance claim, citing numerous other cases with inadequate records to support ineffective assistance claim). A record that specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). After proving error, the appellant must affirmatively prove prejudice. See Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.-Texarkana 2000, pet. ref'd). The appellant must prove that his attorney's errors, judged by the totality of the representation and not by isolated instances of error, denied him a fair trial. Id. It is not enough for the appellant to show that the errors had some conceivable effect on the outcome of the proceedings. Id. He must show that there is a reasonable probability that, but for his attorney's errors, the jury would have had a reasonable doubt about his guilt. Id. In the case at hand, Appellant argues at length as to why his trial counsel's actions, or lack thereof, fell below the professional norm. However, the record is silent as to the reasons Appellant's trial counsel chose the course he did. Thus, as to the alleged deficiencies in his trial counsel's performance, we hold that Appellant has not met the first prong of Strickland because the record does not contain evidence concerning Appellant's trial counsel's reasons for choosing the course he did. See Jackson, 973 S.W.2d at 955; Phetvongkham, 841 S.W.2d at 932; see also Beck, 976 S.W.2d at 266. Absent evidence supporting the underlying rationale for the alleged shortcomings in his counsel's performance, and given the strong presumption that Appellant's counsel was effective, we cannot conclude that Appellant's trial counsel's performance fell below the professional norm. Furthermore, even assuming arguendo that Appellant satisfied the first prong of the Strickland test, Appellant must still affirmatively prove prejudice. See Burruss, 20 S.W.3d at 186. It is not enough for the appellant to merely show that the errors had some conceivable effect on the outcome of the proceedings. Id. Despite repeated readings of Appellant's brief, we can uncover no argument addressing the second prong of the Strickland test. We iterate that the burden of proof as to this issue rests squarely upon Appellant. See Burruss, 20 S.W.3d at 186. As such, we will neither surmise nor devise our own conclusions absent some cogent argument on Appellant's behalf that but for his counsel's alleged unprofessional errors, there exists a reasonable probability that the result of the proceedings would have been different. Appellant's sole issue is overruled.