Opinion
No. 04-02-00462-CR.
Delivered and Filed: March 31, 2004. DO NOT PUBLISH.
Appeal from the 25th Judicial District Court, Guadalupe County, Texas, Trial Court No. 01-0859-CR, Honorable Dwight E. Peschel, Judge Presiding. Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice and Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
A jury found Lewis McMorris guilty of possessing a controlled substance and sentenced him to seventy-five years in the Texas Department of Criminal Justice — Institutional Division as a habitual offender. McMorris appeals, arguing his trial counsel rendered constitutionally ineffective assistance. We disagree. To establish ineffective assistance of counsel during either the guilt/innocence or the punishment phase of a non-capital criminal trial, a defendant must show (1) his trial counsel's performance was deficient, and (2) the deficient performance prejudiced him to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Crim.App. 1999); Holland v. State, 761 S.W.2d 307, 314 (Tex.Crim.App. 1988), cert. denied, 489 U.S. 1091 (1989). To establish deficient performance, a defendant must show counsel's performance fell below an objective standard of reasonableness and rebut the presumption that counsel's trial decisions were based on sound strategy. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). To establish prejudice, the defendant "must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 812. The alleged ineffectiveness must be affirmatively shown in the record. Id. at 813. McMorris first argues counsel's performance was deficient during voir dire because counsel "failed to effectively cross examine the prosecutor regarding his allegedly race neutral reasons for striking [a] [j]uror" and thus failed to make a record that would show the prosecutor's proffered race-neutral reasons were pretextual. However, without such a record, McMorris cannot meet his burden to show his trial counsel's performance was deficient. McMorris next argues his counsel rendered ineffective assistance by failing to prepare for the punishment hearing, pursuing a harmful line of questioning, and "impeaching [McMorris'] earlier testimony." After the jury found McMorris guilty of possessing cocaine and McMorris pled true to two prior felony convictions for possession of a controlled substance, his attorney called him to testify. It appears counsel was attempting to establish that McMorris had a drug problem, would benefit from drug treatment or counseling in prison, and that he thus did not deserve a lengthy sentence. However, it is clear from the record that McMorris did not give the answers the attorney expected. McMorris denied having committed the offense the jury had just found him guilty of and denied ever having used cocaine. Following a break after both sides rested, the defense was allowed to reopen. McMorris again took the stand and, although his testimony was confusing and somewhat contradictory, he testified the had a drug and alcohol problem that got him in trouble and he needed counseling and treatment. McMorris argues this record establishes that trial counsel did not prepare for the punishment phase of the trial and did not prepare McMorris for his testimony. We disagree. The record is silent on what preparation counsel did and it is pure speculation to conclude counsel did not prepare. It is as easy to speculate from this record that, notwithstanding counsel's preparation, McMorris decided when he took the stand not to go along with counsel's strategy and unilaterally decided he would refuse to acknowledge his guilt. McMorris has failed to show counsel did not prepare and has failed to rebut the presumption that his attorney's line of questioning and the decision to call him back to the stand were sound, though unsuccessful, trial strategy. We therefore affirm the trial court's judgment.
In its brief, the State incorrectly contends we do not have jurisdiction over this appeal because McMorris' notice of appeal was not timely filed. The trial court imposed sentence on March 20, 2002. McMorris timely filed a motion for new trial on April 9, 2002. The notice of appeal was therefore due June 18, 2002, or a motion for extension of time, filed in this court, and a notice of appeal, filed in the trial court, were due no later than July 3, 2002. See Tex.R.App.P. 26.2, 26.3. McMorris filed a notice of appeal in the trial court on June 24, 2002, and filed a motion for extension of time in this court on July 3, 2002. Both the notice of appeal and the motion for extension of time were timely filed in the proper court, and on July 19, 2002, this court granted the motion for extension of time. We therefore have jurisdiction over the appeal. See Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996).
As the Texas Court of Criminal Appeals has recognized, many claims of ineffective assistance, especially those involving alleged errors of omission, cannot be adequately presented on direct appeal because the record is insufficiently developed. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). In such cases, "collateral attack may be the vehicle by which a thorough and detailed examination of alleged ineffectiveness may be developed and spread upon a record." Id. (quoting Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998)).