Opinion
Nos. 05-09-01268-CR, 05-09-01269-CR
Opinion Filed November 9, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 429th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 429-80448-09 429-81839-09.
Before Justices BRIDGES, FRANCIS, and LANG.
MEMORANDUM OPINION
Jeremiah Lee Colfry was indicted on three counts of aggravated sexual assault and two counts of indecency with a child involving the molestation of two young sisters, J.B. and A.B. Appellant entered non-negotiated pleas of guilty to all five offenses, and the trial court assessed punishment at life in prison on the aggravated sexual assault charges and twenty years in prison on the indecency charges. In a single issue, appellant contends he was denied effective assistance of counsel. We affirm. Several witnesses testified and numerous documents were admitted at the hearing. Briefly, the evidence showed that appellant was friends with the father and stepmother of J.B. and A.B., who were eleven and seven at the time of trial. One night, appellant spent the night at the girls' house and was sleeping on the couch in the living room. J.B. awakened after a bad dream and went to look for her father. As she walked through the living room, appellant called her over to him and pulled her onto the couch. J.B. testified that appellant put his hand on her "girl area," "put his finger in it," licked it, and "started biting it a little bit." After J.B. made an outcry, her parents discovered that appellant had also molested A.B. Evidence showed appellant had a history of deviant sexual behavior. At the age of sixteen, he was sent to the Texas Youth Commission for sexually abusing two young boys. He reported that by the age of fifteen, he had sexually abused nine children, both male and female, age twenty-two months to nine years old, and had also sexually abused numerous dogs and cats. During his five years in TYC, appellant underwent sex offender treatment. In a single issue, appellant contends trial counsel rendered ineffective assistance by failing to object to the admission of (1) written voluntary statements of the girls' mother, father, and stepmother, (2) the offense report from the Wylie Police Department, and (3) TYC business records. He contends all of these exhibits were inadmissible hearsay that influenced the judge into assessing the maximum punishment. In response, the State asserts that counsel's actions were part of a trial strategy to focus on appellant's "openness with his past" and his cooperation with authorities, in an effort to put perspective on the evidence and establish the possibility that treatment could help him. The State supports its argument with record citations showing: (1) appellant planned to enter open pleas of guilty, and his counsel and the prosecutor submitted evidence (including the evidence complained of here) to the trial judge in advance of trial; (2) on the day of the trial, appellant learned a different judge would decide punishment and the judge had reviewed the evidence, and (3) in the face of this new information, appellant persisted in his decision to enter an open plea of guilty and allow the judge to decide punishment. We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984) and adopted in Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). To obtain reversal on grounds of ineffective assistance of counsel, appellant must show that (1) counsel's representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced him; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App. 2005). We commonly assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. Andrews, 159 S.W.3d at 101. The court of criminal appeals has made clear that, in most cases, a silent record which provides 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). Further, counsel should ordinarily be accorded an opportunity to explain his actions before being condemned as unprofessional and incompetent. Rylander, 101 S.W.3d at 111. Because the reasonableness of trial counsel's choices often involve facts that do no appear in the appellate record, an application for writ of habeas corpus is the more appropriate vehicle to raise ineffective assistance of counsel claims. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). In this case, Colfry did not file a motion for new trial complaining about counsel's representation; consequently, appellant's trial counsel has not been given an opportunity to explain his actions. Because the record provides no explanation for counsel's actions, and because we can "imagine" a strategic motive in counsel's failure to object to the complained-of evidence, we conclude appellant has not met his burden of showing that trial counsel's performance fell below an objective standard of reasonableness. We overrule the sole issue. We affirm the trial court's judgments.