No. 05-10-00326-CR
Opinion Filed July 20, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 59th Judicial District Court Grayson County, Texas, Trial Court Cause No. 056224.
Before Justices BRIDGES, LANG-MIERS, and MURPHY.
Opinion By Justice LANG-MIERS.
Appellant William Michael Wilson was convicted by a jury for aggravated robbery and sentenced to 99 years in prison. On appeal appellant argues that his conviction should be reversed because he received ineffective assistance of counsel. We affirm.
Background
The State's evidence demonstrated that appellant robbed a convenience store clerk with a gun. The State's witnesses during the guilt/innocence phase of trial included the store clerk, police officers who investigated the crime, and two of appellant's acquaintances who testified that appellant told them he committed the robbery. Appellant did not testify or present any other evidence during the guilt/innocence phase of trial. During the punishment phase of trial, the State introduced evidence of appellant's multiple prior misdemeanor and felony convictions. Appellant testified during the punishment phase of trial. Appellant essentially testified that his previous legal problems were the result of his prior addiction to alcohol and cocaine, and that he deserved leniency because (1) he did not commit the robbery at issue, (2) he was employed, and (3) he was not currently using drugs. The jury assessed punishment at 99 years in prison. Appellant filed a motion for new trial in which he argued that he was denied due process because (1) he was allowed only 30 minutes to conduct voir dire, (2) the trial court struck 11 jurors without sufficient legal cause, (3) the State committed prosecutorial misconduct by hiding from appellant, and then giving to the jury, police reports containing hearsay relating to appellant's prior convictions, (4) appellant's rights under the Confrontation Clause were violated when the jury was allowed to consider the police reports containing hearsay relating to appellant's prior convictions, and (5) appellant's mother was in the hospital and unavailable to testify during the guilt/innocence phase of appellant's trial. The trial court held a hearing on appellant's motion for new trial at which four witnesses testified: appellant, appellant's counsel, appellant's mother, and the prosecutor. After the hearing the trial court signed an order denying appellant's motion. Issue on Appeal
On appeal, appellant argues that he received ineffective assistance of counsel during the guilt/innocence phase of his trial because his trial counsel (1) failed to properly object and preserve error concerning the trial court's 30-minute time restriction on voir dire, (2) failed to properly object and preserve error on appellant's Batson challenge to the State's preemptory strikes of the only two African-American prospective jurors on the panel, (3) failed to properly object and preserve error after the trial court granted the State's challenge for cause to four prospective jurors under the "one witness rule," and (4) failed to properly preserve error by moving for a continuance due to the unavailability of a material witness. Appellant also argues that he received ineffective assistance of counsel during the punishment phase of his trial because his counsel admitted that she failed to review, and allowed to be admitted into evidence, highly prejudicial and damaging exhibits containing hearsay. Applicable Law
To succeed on appeal in raising a claim that one's trial counsel provided ineffective assistance, an appellant must demonstrate that (1) counsel's representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Lopez v. State, No. PD-0481-10, 2011 WL 2408942, at *3 (Tex. Crim. App. June 15, 2011). In order to satisfy the first prong, the appellant must prove, by a preponderance of the evidence, that trial counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Lopez, 2011 WL 2408942, at *3. In order to satisfy the second prong, an appellant must show that there is a reasonable probability, or a probability sufficient to undermine confidence in the outcome, that the result of the proceeding would have been different. Id. This stringent burden requires that an appellant point to objective facts in the record that probably would have led to a not-guilty verdict or a lesser punishment. See Bone v. State, 77 S.W.3d 828, 836-37 n. 29 (Tex. Crim. App. 2002). An appellant must meet his burden as to both prongs of the Strickland test; should the proof fail as to either, then we must overrule the claim of ineffective assistance. See Lopez, 2011 WL 2408942, at *3 ("Unless appellant can prove both prongs, an appellate court must not find counsel's representation to be ineffective."). Analysis
In this case, even if we assume that trial counsel's performance fell below an objective standard of reasonableness, we cannot conclude that appellant met his burden under the second prong of Strickland. In his brief, appellant generally acknowledges that to meet his burden under the second prong of Strickland he is required to show that he was prejudiced as a result of his counsel's alleged deficient performance. He argues that: (1) his counsel's conduct "likely materially affect the verdict of the jury herein, and the punishment assessed," (2) he was "clearly prejudiced" by his counsel's conduct, and (3) "[c]learly there exists a 'reasonable probability sufficient to undermine confidence in the outcome, that, but for counsel's unprofessional errors, the result of the proceedings would have been different.'" But he does not point to any objective facts in the record that probably would have led to a not-guilty verdict or a lesser punishment, nor does he otherwise explain how or why the verdict or punishment would have been different. As a result, appellant has failed to meet his burden under the second prong of Strickland. See, e.g., Andrews v. State, No. 06-07-00044-CR, 2007 WL 2480804, at *5 (Tex. App.-Texarkana Sept. 5, 2007, no pet.) (mem. op., not designated for publication) (appellant failed to meet his burden under second prong of Strickland because, "[o]ther than claiming that the harm is 'obvious and clearly contributed to the conviction,' [appellant] fail[ed] to make any effort to prove 'reasonable probability' that the result of the trial would have been different"). Because appellant has failed to meet his burden under the second prong of Strickland, we are required to resolve appellant's sole issue against him and do not address the requirements of the first prong of Strickland. See Strickland, 466 U.S. at 697 (defendant's failure to satisfy one prong of two-part test negates a court's need to consider the other); see also Ex parte Martinez, 195 S.W.3d 713, 730 n. 14 (Tex. Crim. App. 2006) (noting appellant's failure to set forth any legal or factual arguments regarding how counsel's alleged failures prejudiced appellant authorized court to deny relief based on briefing waiver); Ladd v. State, 3 S.W.3d 547, 570 (Tex. Crim. App. 1999) (overruling ineffective assistance claim without addressing first prong of Strickland because defendant's failure to make any effort to prove prejudice from counsel's allegedly deficient performance precluded relief); cf. Lopez, 2011 WL 2408942, at *3 ("Because appellant failed to meet his burden on the first prong of Strickland, we need not consider the requirements of the second prong."). Conclusion
We resolve appellant's sole issue against him and affirm the trial court's judgment.