Opinion
No. 05-02-00238-CR
Opinion issued May 27, 2003 Do Not Publish
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-73109-QT. AFFIRMED
MEMORANDUM OPINION
A jury found appellant Efrain Hernandez guilty of murder and sentenced him to thirty years' imprisonment. In a single issue, appellant complains that trial counsel rendered ineffective assistance by not requesting a mitigating instruction on sudden passion during the punishment phase of the trial. The facts of this case are known to the parties, and we do not recite them here. Further, because all dispositive issues are clearly settled in law, we issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1. See Tex.R.App.P. 47.1. We affirm the trial court's judgment. We examine ineffective assistance of counsel claims using the standards set out in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). Specifically, appellant must establish by a preponderance of the evidence that (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (2) the deficiency prejudiced the appellant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. See Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App. 1985). To determine whether counsel was ineffective we must look to the facts of each case. Ex parte Scott, 581 S.W.2d 181, 182 (Tex.Crim.App. 1979). We must examine counsel's representation in its entirety to determine whether appellant received effective assistance. Id. at 812. We inquire into counsel's trial strategy only if there appears to be no plausible basis in strategy or facts for counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex.Crim.App. [Panel Op.] 1981). We presume the defense counsel's competence and to defeat this presumption, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. In most cases, a silent record which provides no explanations for counsel's actions will not overcome the strong presumption of reasonable assistance. Id. at 813-14. Appellant filed a motion for new trial but did not raise an ineffective assistance of counsel ground. Thus, there is no record to explain the motivation behind counsel's actions and whether they resulted from strategic design or negligent conduct. Because the record is silent as to why trial counsel did not seek a mitigating instruction on sudden passion, appellant has not met his burden of establishing his counsel's performance was deficient. We therefore resolve appellant's sole issue against him. We affirm the trial court's judgment.
We are not required to speculate as to why counsel did not ask for an instruction on sudden passion; however, we are permitted to do so. One plausible explanation is that counsel did not feel the facts of this case raised the issue of sudden passion. Moreover, even if we could discern no particular strategical or tactical purpose to counsel's omission and assumed there was none that would invert the analysis. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim App. 2002). The appellant had the burden to prove there was, in fact, no plausible professional reason for the specific omission. Id.