Opinion
No. 05-02-01862-CR
Opinion issued October 7, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the County Court at Law No. 3, Collin County, Texas, Trial Court Cause No. 003-82383-00. AFFIRMED
Before Justices MORRIS, FITZGERALD, and LANG.
MEMORANDUM OPINION
In this appeal, Brent Michael Grable challenges his conviction for driving while intoxicated. He complains in a single point of error that he received ineffective assistance of counsel. We affirm the trial court's judgment. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in the case is well settled. Although he did not complain about his trial counsel's representation at trial or in a motion for new trial, appellant now contends in his sole point of error that he received ineffective assistance of counsel during the guilt-innocence phase of trial. He specifically complains that trial counsel (1) failed to object to certain hearsay evidence identifying him as the driver of his vehicle, (2) introduced a hearsay police report into evidence showing he was the driver and fled from the scene, and (3) requested and received an Allen See Footnote 1 charge instructing the jury to persist in its deliberations after it deadlocked and the judge indicated he was ready to declare a mistrial. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on an ineffective assistance claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Moreover, if the record is silent regarding counsel's reasons for his conduct and there is "at least the possibility that the conduct could have been legitimate trial strategy," we will defer to counsel's decisions and deny relief on direct appeal. See Ortiz v. State, 93 S.W.3d 79, 89 (Tex.Crim.App. 2002), cert. denied, 123 S.Ct. 1901 (2003). In this case, we do not know counsel's reasons for conducting the case as he did. Nevertheless, it is possible counsel was pursuing a legitimate trial strategies. For instance, counsel may have decided objecting to the hearsay testimony was futile because he knew the State could admit the evidence through a hearsay exception or through live testimony. In addition, as appellant suggests, counsel may have introduced the police report into evidence to impeach the testifying police officer. Finally, counsel may have thought appellant would likely be acquitted if the already-deadlocked jury was urged to continue its deliberations. Based on the record before us, we conclude appellant's sole point of error is without merit. We affirm the trial court's judgment.