Opinion
No. 13-02-247-CR
Opinion Delivered and Filed May 20, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 25th District Court of Gonzales County, Texas.
Before Justices HINOJOSA, YAÑEZ, and GARZA.
MEMORANDUM OPINION
Following a jury trial, appellant, Miguel Espinoza, was convicted of the felony offense of possession of marihuana (two thousand pounds or less but more than fifty pounds). He was sentenced to fourteen years confinement and a fine of $7,500.00. In a single issue, he contends he was denied effective assistance of counsel when trial counsel failed to adequately interview him and failed to file a motion for discovery and inspection. We affirm. The trial court has certified that this is not a plea bargain case and the defendant has a right to appeal. See TEX. R. APP. P. 25.2(a)(2). As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them except as necessary to advise the parties of the court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
Standard of Review
We review ineffective assistance claims under the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984); see Bone v. State, 77 S.W.3d 828, 832 (Tex.Crim.App. 2002). The test requires an appellant to show that: (1) counsel's performance fell below an objective standard of reasonableness under prevailing norms; and (2) there is a reasonable probability that, but for counsel's deficient performance, the result would have been different. Bone, 77 S.W.3d at 832. A "reasonable probability is one sufficient to undermine confidence in the outcome." Id. We examine the totality of the representation, as reflected in the record, in making this determination. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Appellate courts apply a strong presumption that counsel's actions fell within the range of reasonable professional assistance. Bone, 77 S.W.3d at 833. The appellant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Id. at 832. To defeat the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly grounded in the record, and the record must affirmatively demonstrate the alleged ineffectivess." Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999) (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996)). "Under normal circumstances, 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 decision making as to overcome the presumption that counsel's conduct was reasonable and professional." Bone, 77 S.W.3d at 833. "[I]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." Id. (quoting Thompson, 9 S.W.3d at 813-14). As the court of criminal appeals has noted, "the proper procedure for raising [a claim of ineffective assistance] is almost always habeas corpus." Aldrich v. State, 104 S.W.3d 890, 896 (Tex.Crim.App. 2003); see also Bone, 77 S.W.3d at 837 n. 30; Thompson, 9 S.W.3d at 814. The court of criminal appeals recently confirmed its holding in Ex parte Torres, 943 S.W.2d 469, 475 (Tex.Crim.App. 1997), that because a direct appeal record often contains insufficient evidence to evaluate an ineffective assistance issue, the rejection of an applicant's claim on direct appeal does not bar relitigation of such a claim on habeas corpus to the extent that the applicant seeks to gather and introduce additional evidence not contained in the direct appeal record. Ex parte Nailor, No. 1109-03, 2004 Tex.Crim. App. LEXIS 518, at *10-*11 (Tex.Crim.App. March 24, 2004) (designated for publication) (citing Ex parte Torres, 943 S.W.2d at 475). Here, appellant contends his trial counsel was ineffective because he failed to discover and obtain evidence of a 1998 bond appellant posted pursuant to his 1998 arrest. Such evidence, appellant argues, would have bolstered his credibility and would have countered the State's arguments that he "ran off" and failed to "ever try to straighten it out." Given the standard of review for ineffectiveness of counsel, appellant has not met his burden to prove trial counsel's representation fell below an objective standard of reasonableness and that the deficient performance prejudiced his defense. See Thompson, 9 S.W.3d at 812. Appellant testified that he was arrested and posted bond in 1998. The record contains no evidence regarding what efforts, if any, trial counsel made to obtain evidence of the 1998 bond. The record is similarly devoid of evidence establishing a reasonable probability that if the bond had been produced, the outcome of the trial would have been different. See id. Accordingly, we hold the record on direct appeal is insufficient to establish that trial counsel's representation fell below an objective standard of reasonableness and the deficient performance prejudiced appellant's defense. See id. We overrule appellant's issue and affirm the judgment of the trial court.See TEX. HEALTH SAFETY CODE ANN. § 481.121(a), (b)(5) (Vernon 2003).
Appellant's brief concludes that the trial court's order overruling his Batson challenge, see Batson v. Kentucky, 476 U.S. 79, 83 (1986), was not clearly erroneous. Thus, we do not address it.