From Casetext: Smarter Legal Research

Jones v. State

Court of Appeals of Texas, Tenth District, Waco
Mar 23, 2005
No. 10-04-00044-CR (Tex. App. Mar. 23, 2005)

Opinion

No. 10-04-00044-CR

Opinion delivered and filed March 23, 2005. DO NOT PUBLISH.

Appeal from the 54th District Court, McLennan County, Texas, Trial Court # 2003-964-C.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA, Affirmed.


MEMORANDUM Opinion


Appellant David Jones, Jr. directly appeals his felony conviction for attempted burglary of a habitation (habitually enhanced). Punishment was assessed by the jury at 70 years in the Texas Department of Corrections. In three issues, Appellant alleges that his trial attorney rendered ineffective assistance of counsel by (1) failing to request a jury instruction on the lesser included offense of attempted criminal trespass, (2) failing to object to an instruction in the jury charge that allegedly instructed the jury that Appellant was charged with burglary, rather than attempted burglary, and (3) failing to object to the trial court's response to a jury note. Appellant's brief, citing Bone v. State, 77 S.W.3d 828 (Tex.Crim.App. 2002), acknowledges the presumption that trial counsel employed sound strategy cannot normally be overcome on direct appeal because the record will not contain evidence of the trial attorney's reasons for his conduct, but nonetheless allegedly seeks to comply with this Court's directive in Taulung v. State, 979 S.W.2d 854, 856 (Tex.App.-Waco 1998, no pet.), that all appellate arguments be made that might "conceivably" persuade the Court. The legal standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to Appellant's claim of ineffective assistance of counsel. Bone, 77 S.W.3d at 833. To prevail on his claims, appellant must first show that his counsel's performance was deficient. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; see Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). Specifically, appellant must prove, by a preponderance of the evidence, that his counsel's representation fell below the objective standard of professional norms. Mitchell, 68 S.W.3d at 642. Second, appellant must show that this deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064 ("This [prejudice prong] requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."). As explained in Mitchell v. State, "[t]his means that the appellant must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different." Mitchell, 68 S.W.3d at 642. A "reasonable probability" is one sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Mitchell, 68 S.W.3d at 642. Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001); Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional. See Mitchell, 68 S.W.3d at 642; Mallett, 65 S.W.3d at 64-65. As the Court of Criminal Appeals recently explained, rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation: "[i]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999) (to defeat the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness"); see also Johnson v. State, 68 S.W.3d 644, 655 (Tex.Crim.App. 2002) ("[t]he record does not reveal defense counsel's reasons for not objecting to the prosecutor's comments. Given the presumption of effectiveness and the great deference we give to decisions made by defense counsel, we see nothing in the present record that would compel us to find counsel ineffective"); Mitchell, 68 S.W.3d at 642 ("[g]enerally the record on direct appeal will not be sufficient to show that counsel's representation was so deficient as to meet the first part of the Strickland standard. The reasonableness of counsel's choices often involves facts that do not appear in the appellate record. A petition for writ of habeas corpus usually is the appropriate vehicle to investigate ineffective-assistance claims"); Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001) ("an appellate court 'commonly will assume a strategic motivation if any can possibly be imagined,' and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it") (quoting 3 W. LAFAVE, ET AL., CRIMINAL PROCEDURE § 11.10(c) (2d ed. 1999)). Appellant did not move for a new trial or request a post-verdict hearing on trial counsel's strategies. Because the appellate record in this case does not reflect the reasons for trial counsel's strategy, we cannot and will not reach Appellant's three issues, which are thus overruled without regard to their merit. The trial court's judgment and sentence are affirmed.


Summaries of

Jones v. State

Court of Appeals of Texas, Tenth District, Waco
Mar 23, 2005
No. 10-04-00044-CR (Tex. App. Mar. 23, 2005)
Case details for

Jones v. State

Case Details

Full title:David Jones, Jr., Appellant v. The State of Texas, Appellee

Court:Court of Appeals of Texas, Tenth District, Waco

Date published: Mar 23, 2005

Citations

No. 10-04-00044-CR (Tex. App. Mar. 23, 2005)