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Correa v. State

Court of Appeals of Texas, Fifth District, Dallas
Jun 19, 2008
Nos. 05-07-00880-CR, 05-07-00881-CR (Tex. App. Jun. 19, 2008)

Opinion

Nos. 05-07-00880-CR, 05-07-00881-CR.

Opinion Filed June 19, 2008. DO NOT PUBLISH Tex. R. App. P. 47

On Appeal from the 282nd Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F06-72210-WS, F06-72211-WS.

Before Justices WRIGHT, BRIDGES, and MAZZANT.


MEMORANDUM OPINION


Felipe Correa appeals his convictions for possession of 400 grams or more of methamphetamine with the intent to deliver, and possession of more than 4 ounces but less than five pounds of marijuana. After the jury found appellant guilty, the trial court assessed punishment at two years' confinement in the marijuana case and 23 years' confinement in the methamphetamine case. In four issues, appellant contends trial counsel was ineffective by failing to file motions to suppress evidence in his two cases. We overrule appellant's issues and affirm the trial court's judgments. We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). Appellant has the burden to show by a preponderance of the evidence (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (2) the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight. Id. Rather, we strongly presume counsel's competence. Id. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. "In the usual case in which an ineffective-assistance claim is made, 'the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional.'" Cannon v. State, 2008 WL 141902, *6 (Tex.Crim.App. Jan. 16, 2008) (quoting Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002)). This is generally the case because a silent record provides no explanation for counsel's actions and therefore 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, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 813-14. Furthermore, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. Consequently, an application for writ of habeas corpus is the more appropriate vehicle to raise ineffective assistance of counsel claims. Rylander, 101 S.W.3d at 110. Here, appellant did not file a motion for new trial on ineffective assistance of counsel grounds. Thus, the record in this case provides no discussion of trial counsel's purported errors. Nor does the record contain any discernible explanation of the motivation behind counsel's failure to file motions to suppress. The failure to file a suppression motion does not constitute per se ineffective assistance of counsel. Kimmelman v. Morrison, 477 U.S. 365, 380-81 (1986); Castellan v. State, 49 S.W.3d 566, 575 (Tex.App.-Corpus Christi 2001, pet. ref'd). Although there are rare cases in which a record is sufficient for an appellate court to make a decision on the merits, this is not one of those rare cases. See Cannon, 2008 WL 141902, at *6. Thus, we cannot conclude appellant has met his burden to overcome the strong presumption of reasonable assistance. See Freeman v. State, 125 S.W.3d 505, 506 (Tex.Crim.App. 2003) ("The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose of establishing this claim."); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (appellate court is not required to indulge in speculation concerning counsel's decision-making processes or to imagine reasons why counsel acted or failed to act in particular manner). We overrule appellant's first through fourth issues. Accordingly, we affirm the trial court's judgments.


Summaries of

Correa v. State

Court of Appeals of Texas, Fifth District, Dallas
Jun 19, 2008
Nos. 05-07-00880-CR, 05-07-00881-CR (Tex. App. Jun. 19, 2008)
Case details for

Correa v. State

Case Details

Full title:FELIPE CORREA, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Jun 19, 2008

Citations

Nos. 05-07-00880-CR, 05-07-00881-CR (Tex. App. Jun. 19, 2008)