Opinion
Nos. 05-04-00382-CR, 05-04-00383-CR, 05-04-00384-CR, 05-04-00385-CR, 05-04-00386-CR, 05-04-00387-CR
Opinion filed June 27, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-45612-IQ, F02-45606-IQ, F02-45592-IQ, F02-45591-IQ, F02-45590-IQ, F02-45613-IQ. Affirmed.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
MEMORANDUM OPINION
Henry Wayne Baker was indicted for two counts of sexual assault of a child and four counts of aggravated sexual assault of a child younger than fourteen years of age. Baker pled guilty to all counts without the benefit of a plea bargain agreement. The trial court sentenced Baker to twenty years' confinement and a $1,000 fine in each case of sexual assault of a child and thirty years' confinement and a $1,000 fine in each case of aggravated sexual assault of a child younger than fourteen years of age. In a single point of error, Baker asserts his trial counsel rendered ineffective assistance of counsel by failing to introduce evidence to mitigate punishment. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's judgments. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence (1) deficient performance, and (2) prejudice. Goodspeed v. State, No. PD-1882-03, 2005 WL 766996, at *2 (Tex.Crim.App. Apr. 6, 2005) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). A claim of ineffective assistance of counsel must be "firmly founded in the record" and "the record must affirmatively demonstrate" the meritorious nature of the claim. Id. Further,
[d]irect appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. This is true with regard to the question of deficient performance-in which counsel's conduct is reviewed with great deference, without the distorting effects of hindsight-where counsel's reasons for failing to do something do not appear in the record. We have said that "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it."Id. (footnotes and citations omitted). Baker argues that trial counsel failed to offer evidence to mitigate punishment. Baker asserts trial counsel should have introduced evidence about his difficult childhood, such as his claim that he was raped at the age of ten years old, his diminished intellectual abilities, and his reported history of auditory and visual hallucinations. In closing argument, trial counsel made reference to these issues but failed to present evidence. The record is silent as to trial counsel's strategy. This Court will not speculate as to what counsel's trial strategy might have been with regard to failure to introduce additional evidence. Moreover, we look to the totality of the representation rather than examining isolated acts or omissions of counsel. See Scheanette v. State, 144 S.W.3d 503, 509 (Tex.Crim.App. 2004), cert. denied, ___ U.S. ___, 125 S. Ct. 872 (2005). Baker has failed to rebut the strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance. We overrule Baker's sole point of error. We affirm the judgments of the trial court.