No. 05-07-00009-CR
Opinion issued April 25, 2008. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 3 Dallas County, Texas, Trial Court Cause No. F04-56487-J.
Before Justices WHITTINGTON, RICHTER, and MAZZANT. Opinion By Justice MAZZANT.
AMOS L. MAZZANT, Justice.
Torry Dontae Timmons was convicted of murder and sentenced to thirty-five years in prison. In two issues, appellant argues he was denied the effective assistance of counsel. For the following reasons, we affirm the trial court's judgment.
Discussion
In his first issue, appellant argues he was denied the effective assistance of counsel because his trial attorney failed to request a jury instruction on the lesser-included offense of aggravated assault. Ineffective assistance of counsel is evaluated under the standard set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App. 1986) (en banc). To prevail on an ineffective assistance 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 counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88. "Any allegation of ineffectiveness must be firmly rooted in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). "Ineffective assistance of counsel claims are not built on retrospective speculation; they must 'be firmly founded in the record.' That record must itself affirmatively demonstrate the alleged ineffectiveness." Bone v. State, 77 S.W.3d 828, 835 (Tex.Crim.App. 2002). Our review of an ineffective assistance claim is highly deferential and begins with a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (en banc). An appellate court should not try to second guess counsel's tactical decisions that do not fall below the objective standard of reasonableness. Young v. State, 991 S.W.2d 835, 837 (Tex.Crim.App. 1999) (en banc). When, as in this case, the record is silent regarding counsel's reasons for his conduct, we will defer to counsel's decisions if there is at least the possibility that the conduct could have been legitimate trial strategy. See Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002). Trial counsel should ordinarily be afforded the opportunity to explain his actions before being denounced as ineffective. See Goodspeed v. State, 187 S.W.3d 390, 393-94 (Tex.Crim.App. 2005). Because the reasonableness of counsel's choices often involve facts that do not appear in the record, an application for a writ of habeas corpus is normally the preferred vehicle for raising ineffective assistance of counsel claims. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002) (en banc). In the majority of cases, the undeveloped record on direct appeal will be insufficient for an appellant to satisfy the dual prongs of Strickland because the reasonableness of counsel's choices often involve facts not appearing in the cold appellate record. See Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003). This case is no different. The record in this case is undeveloped and does not shed any light on why defense counsel did not request a jury instruction on the lesser included offense of aggravated assault. See Cardenas v. State, 30 S.W.3d 384, 392 (Tex.Crim.App. 2000) (aggravated assault is a lesser included offense of murder). Moreover, appellant's motion for new trial did not raise ineffective assistance of counsel as a ground in the motion. It is possible that trial counsel was pursuing an all-or-nothing trial strategy, forcing the jury to choose between convicting appellant of murder or finding him not guilty and acquitting him. See Lynn v. State, 860 S.W.2d 599, 603 (Tex.App.-Corpus Christi 1993, pet. ref'd). A defense counsel does not act deficiently in failing to request a lesser included offense if he was pursuing an all-or-nothing trial strategy. See Ex Parte White, 160 S.W.3d 46, 55 (Tex.Crim.App. 2004); Lynn, 860 S.W.2d at 603 (requiring a jury to choose between murder and acquittal, although risky, is sometimes successful). So long as counsel's actions could be the product of reasonable trial strategy, he should be given the opportunity to explain his actions before being condemned as unprofessional and incompetent. Bone, 77 S.W.3d at 836. We must presume trial counsel had plausible reasons for his actions. Because appellant has failed to bring forward evidence rebutting that presumption, we are unable to conclude trial counsel's performance was deficient. We overrule appellant's first issue. In his second issue, appellant argues his trial counsel was ineffective because he failed to request a jury instruction on self-defense. According to the record, appellant's trial counsel asked for an instruction on self-defense and objected to the jury charge when the trial court did not include the requested instruction. Because trial counsel asked for a self-defense instruction and objected to the charge when the trial court did not include one, appellant cannot establish that counsel rendered ineffective assistance. Appellant's second issue is overruled. We affirm the trial court's judgment.