No. 05-03-01726-CR
Opinion Filed November 15, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause No. F-9651596-I. Affirmed.
Before Justices O'NEILL, LANG, and LANG-MIERS.
Opinion By Justice LANG.
Derek Paul Ray, Sr., appellant, appeals the trial court's assessment of punishment after adjudicating his guilt for violating the conditions of his probation. Appellant pleaded guilty to the offense of injury to a child under the age of 14 years. The trial court deferred the adjudication of appellant's guilt and placed him on ten years of community supervision. The State moved to proceed with adjudication of appellant's guilt because he violated three of the conditions of his probation. Appellant pleaded true to the allegations. The trial court adjudicated appellant's guilt and sentenced him to 40 years of imprisonment. On appeal, appellant challenges the trial court's sentence claiming that his trial counsel was ineffective because he failed to present expert medical testimony that his son did not suffer from any permanent disabilities in mitigation of his punishment. The State responds that appellant did not meet his burden to establish ineffective assistance of counsel. We conclude that appellant has not shown by a preponderance of the evidence that his trial counsel's failure to present expert medical testimony that his son did not suffer from any permanent disabilities in mitigation of his punishment provided him with ineffective assistance of counsel. We affirm the trial court's judgment. Tex.R.App.P. 43.2(a).
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was indicted for causing serious bodily injury to his infant son by shaking him. As a result of the shaking, appellant's three month old infant son suffered a subdural hematoma, retinal hemorrhaging, and a fractured arm, leg, and ribs. The indictment was enhanced by allegations of two prior convictions for the unauthorized use of a motor vehicle and the burglary of a motor vehicle. Appellant pleaded guilty, true to the enhancement paragraphs in the indictment, and the trial court deferred appellant's adjudication of guilt and placed him on ten years of community supervision. Several years later, the State moved for the trial court to proceed with the adjudication of appellant's guilt. The State alleged that appellant violated the conditions of his probation because he failed to report to his probation officer, failed to pay a probation fee, and failed to make some of his monthly payments toward his $750 fine. Appellant pleaded true to the State's allegations that he violated the conditions of this probation. During the hearing on the State's motion to proceed with adjudication, appellant and his mother stated appellant's son, now seven years old, was normal and did not suffer from any permanent disabilities as a result of his injuries. Appellant's ex-wife and the mother of the child stated their son shakes his leg and sucks his tongue, which the doctor told her was a result of his injuries as an infant, and the doctor has referred their son to a neurologist and an ophthalmologist. Also, she stated their son requires additional assistance with his school work. Further, she stated their son stutters, but the doctor told her it may be an inherited family trait. The trial court adjudicated appellant guilty and sentenced him to 40 years of imprisonment. II. FAILURE OF TRIAL COUNSEL TO PRESENT EXPERT MEDICAL TESTIMONY
In his sole issue on appeal, appellant claims his trial counsel was ineffective because he failed to present expert medical testimony that his son suffered no permanent disabilities as a result of his injuries in mitigation of punishment. Appellant argues his trial counsel's failure to rebut his ex-wife's testimony about their son's physical disabilities with expert medical testimony resulted in his 40-year sentence rather than community supervision. Also, appellant argues he is indigent and should have been given the opportunity to present medical expert testimony. The State responds that appellant did not meet his burden to establish ineffective assistance of counsel because he has not demonstrated that his trial counsel's representation was deficient or that he was prejudiced by the omission of expert medical testimony. A. Standard of Review
An appellate court's review of counsel's performance is highly deferential, and there is a strong presumption that counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); see also Gomez v. State, 921 S.W.2d 329, 333 (Tex.App.-Corpus Christi 1996, no pet.). An appellate court does not inquire into trial strategy, unless there exists no possible basis, in strategy or tactics, for counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex.Crim.App. [Panel Op.] 1981). An appellate court should not try to second-guess a trial counsel's tactical decisions that do not fall below the objective standard of reasonableness. Young v. State, 991 S.W.2d 835, 837 (Tex.Crim.App. 1999). An appellate court should be hesitant to declare counsel ineffective based upon a single alleged miscalculation during what amounts to otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind counsel's actions-whether those actions were of strategic design or the result of negligent conduct. Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). B. Applicable Law
We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986); see also, e.g., Jackson v. State, 877 S.W.2d 768, 770-71 (Tex.Crim.App. 1994) (en banc). To prevail on a claim of ineffective assistance of counsel, an appellant must show the following: (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. See Strickland, 466 U.S. at 687-88, 694; see also Diaz v. State, 905 S.W.2d 302, 307 (Tex.App.-Corpus Christi 1995, no pet.). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. The general rule is that the failure to call witnesses does not constitute ineffective assistance of counsel without a showing that the witnesses were available to testify and that their testimony would have benefitted the defendant. Johnston v. State, 959 S.W.2d 230, 236 (Tex.App.-Dallas 1997, no pet.) ; Cate v. State, 124 S.W.3d 922, 927 (Tex.App.-Amarillo 2004, pet. ref'd). The failure to request the appointment of an expert witness is not ineffective assistance in the absence of a showing that the expert would have testified in a manner that benefitted the defendant. Cate, 124 S.W.3d at 927; Teixeira v. State, 89 S.W.3d 190, 194 (Tex.App.-Texarkana 2002, pet. ref'd). Ineffective assistance of counsel claims must be firmly rooted in the record. Bone, 77 S.W.3d at 835. See also Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Thompson, 9 S.W.3d at 813. Under normal circumstances, the record on direct appeal is not sufficient to show that counsel's representation was so deficient, and so lacking in tactical or strategic decision to defeat the presumption that counsel's conduct was reasonable and professional. Bone, 77 S.W.3d at 833. Ordinarily, trial counsel should be afforded an opportunity to explain his actions before being denounced as ineffective. Rylander, 101 S.W.3d at 111. An appellant cannot meet his burden if the record does not specifically focus on the reasons for the conduct of trial counsel. Perez v. State, 56 S.W.3d 727, 731 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). This type of record is best developed in a hearing on an application for a writ of habeas corpus or a motion for new trial. Id. (citing Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998) (per curiam)). C. Application of the Law to the Facts
The record in this case does not include any explanation of why appellant's trial counsel did not present expert medical testimony that appellant's son did not suffer any permanent disabilities as a result of his injuries. Also, the record does not contain any evidence showing that the failure of appellant's trial counsel to present expert medical testimony was not a part of trial strategy. Further, there is no evidence showing that expert medical testimony that appellant's son did not suffer permanent disabilities as a result of injuries was available. As a result, we conclude that appellant has not shown by a preponderance of the evidence that his trial counsel's performance fell below an objective standard of reasonableness because he failed to present expert medical testimony that appellant's son did not suffer any permanent disabilities as a result of his injuries. Because appellant has not satisfied the first prong of Strickland, we need not address whether a reasonable probability exists that but for trial counsel's errors, the result would have been different. See Rylander, 101 S.W.3d at 111; Jackson, 877 S.W.2d at 771. Appellant's sole issue on appeal is decided against him. III. CONCLUSION
We conclude that appellant has not shown by a preponderance of the evidence that his trial counsel's failure to present expert medical testimony that appellant's son did not suffer any permanent disabilities as a result of his injuries provided him with ineffective assistance. We affirm the trial court's judgment. Tex.R.App.P. 43.2(a).