Opinion
No. 13-98-587-CR.
Opinion Delivered and Filed: March 18, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 347th District Court of Nueces County, Texas.
Before Justices HINOJOSA, YAEZ, and CASTILLO
MEMORANDUM OPINION ON REMAND
Appellant, Consuelo Freeman, appeals her conviction for retaliation. In our original opinion in this case, a divided panel of this Court: (1) overruled appellant's first point of error, in which she challenged the trial court's failure to hold a competency hearing; and (2) sustained appellant's second point and reversed her conviction, holding that appellant's trial counsel was ineffective for failing to file a motion to recuse the trial judge. See Freeman v. State, No. 13-98-587-CR, 2001 Tex. App. LEXIS 5638 (Corpus Christi Aug. 16, 2001) (not designated for publication), rev'd, No. 2156-01, 2003 Tex.Crim. App. LEXIS 711 (Nov. 5, 2003).
Tex. Pen. Code Ann. § 36.06 (Vernon Supp. 2004). Although section 36.06 has been amended, the amendments are not material for purposes of this opinion. Thus, we cite to the current version of the statute.
The court of criminal appeals reversed, holding that the record is insufficient in this case to support the ineffective assistance claim addressed by this Court because of appellant's failure to develop a record in the trial court establishing the claim. See Freeman, 2003 Tex.Crim. App. LEXIS at *3. The court noted that "in cases like this `the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.'" Id. at *2 (quoting Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999)). The court of criminal appeals remanded the case to this Court to consider appellant's two remaining points of error. Id. at *3-*4.
In her third and fourth points of error, appellant contends her trial counsel was ineffective for failing to: (1) request appointment of an independent mental health expert; and (2) present any evidence at the punishment phase of the trial. Like the ineffective assistance claim we previously addressed, appellant's additional claims of ineffective assistance were also raised "without having developed a record in the trial court during the trial or during a motion for new trial hearing for the purpose of establishing these claims." See id. at *1. Accordingly, we hold that the record on direct appeal is inadequate to permit a reviewing court to fairly evaluate appellant's remaining claims of ineffective assistance.
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 v. State, 77 S.W.3d 828, 837 n. 30 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 814. We overrule appellant's third and fourth points of error and affirm the judgment of the trial court.