Opinion
No. 05-03-00917-CR
Opinion Issued October 26, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-49172-KS. Affirmed.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
OPINION
In this appeal, Ryan Anton Mangrum complains he received ineffective assistance of counsel at his trial for felony driving while intoxicated. Concluding appellant's points of error are without merit, we affirm the trial court's judgment. Without the benefit of a plea bargain, appellant pleaded guilty before the trial court. After appellant's counsel stated he believed appellant was competent to stand trial, the trial court found appellant competent and accepted the plea. At a punishment hearing the following day, appellant's mother and sister testified that appellant's mental capacity was diminished and that he had never received counseling following the death of his father or brother or after witnessing a double homicide. They felt appellant would benefit from probation, where he would receive counseling and substance abuse treatment. Appellant's mother testified that, although appellant was actually almost thirty-two, he thought on the level of a twenty-one-year-old. Appellant had completed high school and gotten a driver's license. According to appellant's sister, appellant was not technically mentally retarded but his IQ was probably close to the borderline for mental retardation. A third witness testified that appellant sometimes worked for him and never caused trouble. All the witnesses who testified on appellant's behalf claimed he was not a dangerous man. Appellant's mother and sister stated that they would prevent him from driving if he received probation. Appellant also testified at trial. He affirmed for counsel that his trial was proceeding as he had requested. He explained his previous convictions and told the court he hoped to receive probation to treat his drinking problem. He also testified that he was prepared to forego driving a car if he received probation. Appellant clarified on cross-examination that, although he had served time in county jail, he had never served time in a penitentiary. Now on appeal, appellant complains he received ineffective assistance of counsel at trial. He specifically asserts that counsel failed to adequately investigate appellant's ability to understand the nature of his plea, failed to thoroughly respond to the State's cross-examination of defense witnesses, and failed to retain an expert to investigate appellant's diminished mental capacity. 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 claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. 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). We do not inquire into trial strategy unless no possible basis exists in strategy or tactics for counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex.Crim.App. [Panel Op.] 1981). When the record is silent about the motivation of counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel acted reasonably. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). In this case, the record contains no evidence showing why trial counsel behaved as he did. We cannot surmise from the record before us that counsel, in fact, failed to adequately evaluate appellant's ability to understand the consequences of his guilty plea or failed to consider whether, given appellant's mental abilities, an expert was necessary in the case. Moreover, we do not know what tactics prompted counsel to present appellant's mitigating evidence as he did, but we perceive the choices made could have arisen from a reasonable trial strategy. Thus, appellant has failed to overcome the presumption that counsel performed reasonably, under the first prong of Strickland. In addition, the record before us does not show the outcome of appellant's trial would have been different if counsel had more thoroughly questioned about his plea or altered the defense testimony somewhat. At trial, appellant affirmed that he desired to enter a guilty plea and waive a jury. He received a sentence of five years' confinement, which exceeded his request for probation but was still a relatively low sentence in light of appellant's conviction for felony DWI, with another previous felony. See Tex. Pen. Code Ann. §§ 12.33, 12.42(a)(3), 49.09(b)(2) (Vernon 2003 and Supp. 2004-05). Because appellant cannot show that, but for counsel's error, the outcome of his trial would have been different, he fails to overcome the second Strickland prong as well. We overrule appellant's first point of error. In his second and third points of error, appellant complains that the holding of the court of criminal appeals in Thompson, which we have cited as authority in this opinion, violates his rights to due process and equal protection under the U.S. Constitution and also constitutes a violation of the Americans with Disabilities Act. This Court is not at liberty to review clear precedent from the Texas Court of Criminal Appeals. See Duckworth v. State, 89 S.W.3d 747, 752-53 (Tex.App.-Dallas 2002, no pet.). We therefore overrule appellant's second and third points of error. We affirm the trial court's judgment.