Opinion
No. 09-05-191 CR
Submitted on October 26, 2005.
Opinion Delivered January 4, 2006. DO NOT PUBLISH.
On Appeal from the 75th District Court, Liberty County, Texas, Trial Cause No. Cr 24764. Affirmed.
Before GAULTNEY, KREGER and HORTON, JJ.
MEMORANDUM OPINION
In this case, William Henry Sanders, Jr. complains that he received ineffective assistance of counsel and asks this Court to reverse the trial court's judgment and remand this case for a new trial. We affirm. The procedural background for this case is straightforward. Sanders waived his right to a jury trial and pled "not guilty" to burglary of a habitation. See Tex. Pen. Code Ann. § 30.02 (Vernon 2003). After a bench trial, the trial court found Sanders guilty. Subsequently, Sanders pled "true" to two enhancement counts for prior felony-offense convictions, one in 1986 and one in 1995. The trial court sentenced Sanders to twenty-five years in prison. While the record reveals that Sanders filed a motion for new trial, there was no hearing on the motion. In two issues, Sanders asserts that his trial counsel provided ineffective assistance. Sanders faults his attorney with failing to seek a psychiatric examination of Sanders and with waiving the preparation of a pre-sentence investigation report. To establish ineffective assistance of counsel, an appellant must show that: "1) trial counsel's performance was deficient because it fell below an objective standard of reasonableness; and 2) a probability sufficient to undermine confidence in the outcome existed that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Rylander v. State, 101 S.W.3d 107, 109-10 (Tex.Crim.App. 2003) (citing Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999) in explaining the two prong Strickland test for ineffective assistance of counsel). As a reviewing court, we cannot speculate as to the reasons why trial counsel acted as she did; rather, we must be highly deferential and presume trial counsel's actions fell within the wide range of reasonable and professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Further, any allegations of ineffectiveness must be firmly founded in the record. Id. at 835. Generally, the trial record will not show whether there were sound reasons or trial strategy justifying counsel's performance and, thus, will not suffice to establish an ineffective assistance of counsel claim. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Although Sanders filed a motion for new trial, no hearing was conducted to explore defense counsel's trial strategy. Accordingly, there is no evidence from defense counsel's perspective concerning the complained-of actions. In the absence of an evidentiary record that adequately reflects the motives behind counsel's action or inaction, it is difficult to prove that counsel's performance was deficient. Rylander, 101 S.W.3d at 110-11. Absent record evidence to the contrary, we presume that counsel's conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813-14. Without record evidence both establishing deficiency and rebutting the presumption of reasonable assistance, Sanders is unable to satisfy the first prong of Strickland. See Thompson, 9 S.W.3d at 813-14; Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998) (explaining that the record on direct appeal is often particularly inadequate to reflect the failings of trial counsel when the errors complained of are errors of omission). Further, Sanders has failed to show how his counsel's errors, if any, caused harm. Rylander, 101 S.W.3d at 109-10 (requiring the defendant to show that as a result of his counsel's unprofessional errors, the outcome of the proceeding would have been different). Sanders received the minimum sentence and the record is silent as to how a psychiatric exam or PSI would have resulted in a different outcome at trial. We overrule Sanders's two issues and affirm the trial court's judgment.
Sanders was convicted of first-degree-felony burglary of a habitation. See Tex. Pen. Code Ann. § 30.02(d) (Vernon 2003). When, as here, the conviction is enhanced with two prior felony convictions, the punishment range becomes "any term of not more than 99 years or less than 25 years." See Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2005).