Opinion
No. 09-09-00506-CR
Submitted on July 12, 2010.
Opinion Delivered July 21, 2010. DO NOT PUBLISH.
On Appeal from the 163rd District Court, Orange County, Texas, Trial Cause No. B-090549-R.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
Tory James Hebert pled guilty to burglary of a habitation. Following a contested sentencing hearing to the bench, the trial court assessed his punishment at imprisonment for fifteen years. In a single issue, Hebert appeals and contends that he received ineffective assistance of counsel. We affirm the trial court's judgment. On appeal, Hebert asserts that he received ineffective assistance of counsel because of his trial counsel's "failure to question witnesses and to present certain mitigation evidence." Specifically, Hebert complains that his trial counsel neither cross-examined the complaining witness during sentencing nor objected to any of her testimony. Hebert also contends that his trial counsel failed to make the trial court aware of his fear of the co-defendant. A two-pronged test is applied to resolve ineffective assistance of counsel claims. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.E.2d 674 (1984); Garza v. State, 213 S.W.3d 338, 347-48 (Tex. Crim. App. 2007); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). To establish the ineffective assistance of counsel, the appellant must show by a preponderance of the evidence that his counsel's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Strickland, 466 U.S. at 687; Garza, 213 S.W.3d 347-48; Thompson, 9 S.W.3d at 812. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Thompson, 9 S.W.3d at 812. But, as Garza explained, our review of ineffective assistance claims is "highly deferential" to trial counsel, as we presume "that counsel's actions fell within the wide range of reasonable and professional assistance." 213 S.W.3d at 348. When faced with complaints about a trial counsel's alleged deficiencies in a trial, any judicial review must "avoid the deleterious effects of hindsight." Thompson, 9 S.W.3d at 813. Trial counsel's decisions are viewed with great deference when trial counsel's reasons for not undertaking a suggested strategy do not appear in the record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Absent a record that contains the trial counsel's explanation of his strategy, appellate courts are not at liberty to find trial counsel's conduct ineffective, unless the challenged conduct is "so outrageous that no competent attorney would have engaged in it." Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Additionally, any Strickland claim must be "'firmly founded in the record' and 'the record must affirmatively demonstrate' the meritorious nature of the claim." Goodspeed, 187 S.W.3d at 392 (quoting Thompson, 9 S.W.3d at 814) (declining to speculate on counsel's failure to object to hearsay in light of a silent record). In this case, Hebert filed a motion for new trial. Hebert testified and asserted that his trial counsel did not cross-examine the complaining witness during the sentencing hearing despite the request he made to his trial counsel to do so. According to Hebert, the complaining witness could have been cross-examined about inconsistent statements that she made. But, during the hearing for new trial, Hebert could not recall any of the witness's inconsistent statements. Further, during his sentencing hearing, Hebert acknowledged that but for "a few small discrepancies," he agreed with the complaining witness's account of the burglary. Additionally, during the hearing on his motion for new trial, Hebert contended that his trial counsel failed to make the trial court aware that he feared the co-defendant. But the record does not support Hebert's claim. During Hebert's sentencing hearing, he testified that he did not want to commit the offense, but that the co-defendant would not "back down." He further explained that he did not know what the co-defendant would have done had he not agreed to commit the offense, nor did he know what the co-defendant would have done had he decided to let the complaining witness go. Additionally, although there was a hearing on Hebert's motion for new trial, trial counsel did not testify, so the record does not contain trial counsel's explanation for having chosen to represent Hebert in the manner that is reflected by the record. Trial counsel's decisions may have been grounded on a reasonable appreciation of a reasonable trial strategy given the specific facts and circumstances attendant to this trial. Because trial counsel's explanation of his strategy is absent from the record, we may not, on this record, conclude that Hebert's trial counsel was ineffective. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (stating that "rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation"). Moreover, having reviewed the record, the challenged conduct was not "so outrageous that no competent attorney would have engaged in it." Goodspeed, 187 S.W.3d at 392 (quoting Garcia, 57 S.W.3d at 440). On the record before us, we conclude that Hebert's ineffective assistance claim is without merit. We overrule Hebert's issue and affirm the trial court's judgment. AFFIRMED.