Opinion
Nos. 05-02-00145-CR, 05-02-00146-CR, 05-02-00147-CR.
Opinion Filed November 4, 2003. Do Not Publish, Tex.R.App.P. 47.
Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause Nos. F01-48369-PI, F01-73178-PI, and F01-73258-PI. AFFIRM.
Before Chief Justice THOMAS AND Justices JAMES and FITZGERALD.
MEMORANDUM OPINION
Carlos Carmona appeals the judgments adjudicating him guilty of unlawful possession of a firearm by a felon, retaliation, and sexual assault and sentencing him to ten years' imprisonment in each case. Appellant contends his trial counsel was ineffective for not filing affidavits in support of appellant's motion for new trial in each case. We affirm appellant's convictions. In January 2001, appellant was indicted for sexually assaulting Amanda Leal, retaliating against Leal, and unlawful possession of a firearm by a felon. On December 13, 2001, Appellant pleaded guilty in each case and, pursuant to a plea bargain, the adjudication of his guilt was deferred, he was placed on community supervision for ten years, and he was fined $2000 in each case. Six days later, the State filed a motion to adjudicate appellant's guilt in each case, alleging that on December 15, 2001, appellant assaulted Leal by hitting her in the face with his hands or fist. At a hearing on January 3, 2002, Leal testified appellant telephoned her on the evening of Saturday, December 15, 2001, and told her he needed to meet with her. Leal was "hanging out" at a store's parking lot when appellant called her, and he met her in the store's parking lot. Leal testified appellant told her she had ruined his life, and he punched her in the face with his fist. Appellant then fled in a waiting car. Later that night, Leal went to the police station and reported the assault. A police officer took pictures of Leal's bruised and bandaged face. Appellant presented evidence that he did not strike Leal and that Leal's bruises and bandages were the result of a "nose job." At the conclusion of the hearing, the trial court adjudicated appellant guilty in all three cases and sentenced him to ten years' imprisonment in each case. On January 31, 2002, appellant's counsel filed nearly identical motions for new trial in each case. Each motion states appellant has learned Leal testified falsely regarding the fact of the December 15, 2001 assault as well as the extent and cause of her injuries; "Ms. Leal has recanted her allegations completely"; Leal's complained-of injuries were the result of surgery; and "Ms. Leal influenced others at the hearing to testify falsely regarding the alleged assault committed against Ms. Leal." The motions were not sworn to or supported by affidavit or other evidence, and they were denied. In his sole point of error, appellant contends his counsel's assistance at the motion for new trial stage was ineffective because counsel did not support the motions for new trial with affidavits supporting the allegations made in the motions. The standards for reviewing ineffective assistance of counsel claims are well established. The appellant has the burden to show by a preponderance of the evidence that (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms and (2) the deficiency prejudiced the appellant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996) (citing Strickland v. Washington, 466 U.S. 688 (1980)). We indulge a strong presumption the defense counsel's conduct falls within the wide range of reasonable, professional assistance and that the challenged actions might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). To defeat this presumption, "any allegation of ineffectiveness must be firmly founded 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). In most cases, a silent record providing no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813-14. Further, counsel should ordinarily be accorded an opportunity to explain his actions before being held ineffective. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. In this case, the record does not explain why no affidavit was filed in support of the motions for new trial. Also, appellant does not explain, and the record does not show, from whom counsel could have acquired such an affidavit. Nor does the record show that the individuals from whom counsel learned the facts stated in the motions for new trial were willing to swear to their truth. Consequently, there is no record to explain the motivation behind counsel's actions or inactions and whether they resulted from strategic design, negligent conduct, or other cause. On the record before us, we cannot conclude appellant has established that trial counsel's performance fell below an objective standard of reasonableness and, thereby, has satisfied the first prong of Strickland. Accordingly, appellant has not shown his trial counsel's assistance was ineffective. We overrule appellant's sole point of error. We affirm the trial court's judgments.