Opinion
No. 05-03-01610-CR.
Opinion Filed May 12, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 59th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 047069. Affirm.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
MEMORANDUM OPINION
Kelvin Dewone Flemming appeals his conviction for aggravated sexual assault of a child. After appellant pleaded guilty, the jury assessed punishment at confinement for fifty years and a $10,000 fine. In two issues, appellant contends (1) the trial court erred by excusing a potential juror for cause, and (2) he did not receive the effective assistance of counsel at trial. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recount the facts in detail. See Tex.R.App.P. 47.1. We overrule appellant's issues and affirm the trial court's judgment. In his first issue, appellant contends the trial court erred by sua sponte excusing a potential juror. The record shows that the trial court sua sponte excused the potential juror believing her to be disqualified as a juror because she had a charge pending against her for misdemeanor driving while intoxicated. Appellant did not, however, object when the trial court dismissed the juror. Consequently, appellant has failed to preserve error for our review. Cooks v. State, 844 S.W.2d 697, 718 (Tex.Crim. App. 1992). We overrule appellant's first issue. In his second issue, appellant contends he did not receive the effective assistance of counsel at trial. In particular, appellant contends counsel failed to (1) object to the trial court's sua sponte dismissal of a qualified juror, (2) object to certain punishment evidence, and (3) failed to demonstrate appellant was eligible for community supervision. To prevail on an ineffective assistance of counsel claim, an 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. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996) (citing Strickland v. Washington, 466 U.S. 688 (1980)). 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, 812 (Tex.Crim. App. 1999). 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); 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 given an opportunity to explain his actions before being condemned as unprofessional and incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. 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 provides no explanation of the motivation behind counsel's decisions at trial. Because the record is silent regarding any explanation for counsel's actions regarding these complaints, we cannot conclude appellant has met his burden to overcome the strong presumption of reasonable assistance. See Rylander, 101 S.W.3d at 110; Mallett, 65 S.W.3d at 68; Thompson, 9 S.W.3d at 813-14. Moreover, after reviewing the record, we cannot conclude appellant has met his burden to show that but for counsel's actions, the result of the proceeding would have been different. The record shows that when she was fourteen-years-old, appellant's mentally-challenged, step-daughter made an outcry about being sexually abused by appellant. At that time, she was also pregnant. After the baby was delivered, paternity testing showed appellant was the father of the child. Further punishment evidence showed appellant had a history of crack cocaine use, driving while intoxicated, and assault. Other than his bare allegations of harm, appellant has not shown by a preponderance of the evidence that counsel was ineffective or that the results of the proceeding would have been different. See Strickland, 466 U.S. at 687-88; Thompson, 9 S.W.3d at 813. We overrule appellant's second issue. Accordingly, we affirm the trial court's judgment.