Opinion
No. 05-07-00061-CR
Opinion issued May 7, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 4 Collin County, Texas, Trial Court Cause No. 004-87663-05.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
MEMORANDUM OPINION
A jury found appellant Shawn Lee Jackson guilty of indecent exposure. The trial court assessed punishment at ninety days' confinement in the county jail, probated for twelve months, and a $750 fine. In a single issue, appellant claims he received ineffective assistance of counsel because his attorney did not attempt to suppress both pretrial and in-court identifications that were tainted by unnecessarily suggestive out-of-court identification procedures. We affirm. 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 his ineffective assistance claim, appellant must show counsel's performance fell below an objective standard of reasonableness, and a reasonable probability exists the result of the proceedings would have been different absent counsel's errors. Strickland, 466 U.S. at 687-88, 694. Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). When the record is silent about the motivation of counsel's tactical decisions, the appellant will rarely overcome the strong presumption counsel acted reasonably. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). We generally assume a strategic motive if any can be imagined and find counsel's performance deficient only if his conduct was so outrageous no competent attorney would have engaged in it. Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005). In most cases, the record on direct appeal is insufficient to review ineffective assistance of counsel claims. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Here, appellant did not file a motion for new trial on ineffective assistance of counsel grounds. Thus, the record contains no explanation of counsel's motives or strategy in failing to file a motion to suppress the pretrial and in-court identifications. Trial counsel's failure to file a motion to suppress is not per se ineffective assistance of counsel. Hollis v. State, 219 S.W.3d 446, 456 (Tex.App.-Austin 2007, no pet.); see also Greene v. State, 124 S.W.3d 789, 791 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (concluding because nothing in the record showed why counsel chose not to attempt to have in-court identification suppressed, appellant could not meet first Strickland prong). We have reviewed the record and cannot conclude it supports appellant's allegation that counsel's conduct was so outrageous that no competent attorney could have engaged in it. Without trial counsel's explanation, we cannot conclude appellant has met his burden to overcome the strong presumption of reasonable assistance with respect to his complaints. We overrule appellant's sole issue. Accordingly, we affirm the trial court's judgment.