Opinion
No. 10-02-187-CR.
Opinion delivered and Filed on March 19, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
From the 260th District Court, Orange County, Texas, Trial Court # D-000489-R.
Before Chief Justice DAVIS, Justice VANCE, and Senior Justice HILL.
OPINION
Donald Garfield Franklin appeals his conviction by the court of the offense of criminal mischief. The court assessed his punishment at eighteen months in a state jail facility. He contends in a single point that he was denied effective assistance of counsel. We affirm. To succeed on an ineffective assistance claim, an appellant must show that his or her attorney's performance was deficient and that the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 80 L.Ed.2d 674 (1984). Franklin contends that his counsel was ineffective for failing to file pretrial motions and for failing to investigate the case and present witnesses in support of his case. He does not specifically identify any pretrial motion his counsel should have filed that would have changed the result of his trial. There is no showing in the record that Franklin's counsel failed to investigate his case. Franklin has failed to specifically identify any witness who might have been called to testify whose testimony would have changed the result of his trial. Franklin also urges that his counsel was ineffective for trying this case before the court instead of a jury, contending that it was a nullification defense and that a jury would have been much more sympathetic to his plight. While the court characterized Franklin's case as a nullification case, Franklin's assertion that trial counsel was ineffective because he tried the case before a judge instead of a jury or that a jury would have been much more sympathetic is made with little argument, no authority, and no support in the record. We hold that the record fails to establish any showing that Franklin's counsel was ineffective or, if counsel were ineffective, that it affected the result of Franklin's trial. See Lockett v. State, 874 S.W.2d 810, 817 (Tex.App.-Dallas 1994, pet. ref'd). Franklin primarily relies on the cases of Winn v. State, 871 S.W.2d 756 (Tex.App.-Corpus Christi 1993, no pet.) and Smith v. State, 894 S.W.2d 876 (Tex.App.-Amarillo 1995, pet. ref'd). We find both of those cases to be distinguishable because in each a record was developed specifically identifying witnesses favorable to the accused who were not called by the defendant's counsel. Winn, 871 S.W.2d at 760-61; Smith, 894 S.W.2d at 878. As previously noted, there is no record in this case specifically identifying any witness whose testimony would have been helpful to Franklin. We overrule Franklin's sole point. The judgment is affirmed. Affirmed