Opinion
No. 05-02-00605-CR.
Opinion filed June 4, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F01-46412-MH. AFFIRMED.
Before Justices JAMES, FRANCIS, and LANG.
MEMORANDUM OPINION
A jury convicted Stephen Ray Matthews of robbery, and the trial court assessed punishment at ten years in prison and a $2000 fine. In a single point of error, appellant contends he was denied effective assistance of counsel at trial. The facts of this case are well-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. See Tex.R.App.P. 47.4. We affirm the trial court's judgment. Appellant's complaints are directed at trial counsel's performance during jury selection. He contends trial counsel (1) failed to conduct an effective voir dire, (2) failed to adequately examine the venire, (3) agreed to a large number of strikes that disproportionately favored the State, (4) failed to challenge certain venire members for cause, (5) exercised a peremptory challenge on a defense- oriented panel member while failing to challenge a State-oriented venireman who was ultimately selected as a juror, (6) failed to object to the State's comments on punishment, (7) failed to correct an omission of the trial court during an explanation of reasonable doubt, and (8) failed to understand the applicable law. The standards for reviewing ineffective assistance of counsel claims are well-established. In brief, it is an appellant's burden to show 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 McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996), citing Strickland v. Washington, 466 U.S. 688 (1980)). We indulge a strong presumption the defense counsel's conduct falls within the wide range of reasonable, professional assistance — that the challenged actions might be considered sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 770-71 (Tex.Crim.App. 1994). To defeat this presumption, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). The court of criminal appeals has made clear that, in most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813-14. Further, counsel should ordinarily be accorded an opportunity to explain his actions before being condemned as unprofessional and incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. Appellant filed a motion for new trial but did not raise any claim of ineffective assistance of counsel. Consequently, there is no record to explain the motivation behind counsel's actions or inactions and whether they resulted from strategic design or negligent conduct. Based on the totality of this record, we cannot conclude appellant has established that trial counsel's performance fell below an objective standard of reasonableness and, thereby, has satisfied the first prong of Strickland. Therefore, we are unable to conclude that appellant has met the Strickland requirements. We overrule appellant's sole point of error. We affirm the trial court's judgment.