Opinion
No. 10-05-00008-CR
Opinion delivered and filed February 15, 2006. DO NOT PUBLISH.
Appeal from the 361st District Court, Brazos County, Texas, Trial Court No. 04-01728-Crf-361. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
A jury convicted Edward Londell Gray of burglary of a habitation, and the court sentenced him to fifteen years' imprisonment. Gray contends in three issues that he received ineffective assistance of counsel because counsel failed to object to evidence of extraneous offenses presented by the State and because counsel elicited testimony about extraneous offenses. We will affirm. The jury convicted Gray of entering the complainant's home with intent to assault her. The extraneous offense evidence consisted of testimony from the complainant and a friend of the complainant's about: (1) prior instances when Gray had assaulted the complainant or threatened to assault her; (2) prior instances when Gray had been under the influence of alcohol or controlled substances; and (3) Gray's prior convictions. We begin with a "strong presumption" that counsel provided reasonably professional assistance, and an appellant bears the burden of overcoming this presumption. Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005). Generally, the appellate record is insufficient to satisfy this burden. Scheanette v. State, 144 S.W.3d 503, 510 (Tex.Crim.App. 2004). "[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 Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002)). "If counsel's reasons for his conduct do not appear in the record 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 an ineffective assistance claim on direct appeal." Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002). Gray contends that there could be no legitimate trial strategy for failing to object to the admission of evidence regarding the extraneous offenses. We disagree. See McNeil v. State, 174 S.W.3d 758, 760 (Tex.App.-Waco 2005, no pet.). Accordingly, we overrule Gray's issues and affirm the judgment.
Specifically, Gray contends in these three issues that he received ineffective assistance of counsel because (1) counsel failed to object to the admission of evidence of extraneous offenses he committed against the complainant; (2) counsel elicited testimony about extraneous offenses he committed against the complainant; and (3) counsel failed to object to the admission of evidence of other extraneous offenses.