No. 05-08-00125-CR
Opinion Filed March 16, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F06-44841-H.
Before Justices MORRIS, FRANCIS, and MURPHY. Opinion By Justice MORRIS.
JOSEPH B. MORRIS, Justice.
At trial, Tarajay Marlin Robert pleaded guilty to and was convicted of arson of a habitation. In a single issue on appeal, he complains he received ineffective assistance of counsel. Concluding appellant's complaint is without merit, we affirm the trial court's judgment.
Factual Background
Appellant set fire to the family home of his former girlfriend while the girlfriend's family was taking her to college. Appellant admitted to committing the offense He claimed it had been a bad choice based on his anger with the eighteen-year-old girl and his belief that, if he burned her family's house down, they would not be able to afford to send her away to college. Appellant also admitted to vandalizing two vehicles belonging to his former girlfriend's family. Before trial, a doctor evaluated appellant for competency because he had suffered mental health difficulties in the past. His attorney told the trial court that he thought appellant was competent to stand trial. At a sentencing hearing in the case, the defense called a psychologist to testify. The psychologist had interviewed appellant in jail for two and a half hours and had examined appellant's background. When asked if he had any concerns that appellant might harm his ex-girlfriend if he were given probation, the psychologist stated, "According to his self report, which I found credible, [appellant] is over his obsession with his ex-fiancee." The psychologist stated that appellant had a documented history of major mental illnesses including bipolar disorder and difficulties with hallucinations and delusions. The jail, however, had provided appellant with "appropriate medication for these illnesses." The psychologist stated that, based on his testing, appellant "has a very, very low risk of violating probation either by re-offending or by technical violations." The psychologist recommended that continuation of appellant's medication as well as periodic blood testing to ensure compliance should be conditions of appellant's probation. On cross-examination, the psychologist admitted he could not say with certainty that appellant's former girlfriend was "not in any danger." He testified, however, that "the addition of the medications [appellant has] been receiving, in particular two of them, one, the anti-psychotic medication and secondly the mood stabilizer for his bipolar disorder[,] has helped him get over this love fixation." The doctor acknowledged that if appellant stopped taking his medication he would be "dangerous again." He agreed that the ex-girlfriend's family should be in fear about whether appellant will continue to take his medication if he is released and should be scared of him if he is not taking his medication. Testifying in his own defense, appellant stated that he was sorry and never intended to physically harm anyone. He admitted he had been on probation in the past for a theft offense. He claimed he would no longer attempt to contact the former girlfriend. He stated that he had decided "it's better for my family, it's better for her family, if I would just leave it alone, stay away and, you know, try to reconstruct my life." He admitted, however, that the same month he entered his guilty plea in the case, he wrote to the former girlfriend from jail, telling her that he still thought about her every day and asking her to write back to him. The letter was admitted into evidence. Appellant acknowledged that he had been in a mental institution when he was in the seventh grade. He further acknowledged that when he was given medications at that time, he stopped taking the medications a year or two later because of the way they made him feel. He stated that he was now ready to deal with his mental illness and take his medication. At the conclusion of the hearing, the trial court sentenced appellant to twenty years' confinement and a $5,000 fine. Discussion
In his sole issue on appeal, appellant complains he received ineffective assistance of counsel. He particularly complains of counsel's decision to have the psychologist testify in support of his request for probation. Appellant claims defense counsel either was careless in failing to learn the extent of the psychologist's opinions or "simply wrong" to put the psychologist on the stand because the psychologist unequivocally testified that appellant would be dangerous again if he stopped taking his medication while on probation. We examine ineffective assistance of counsel claims under well-known standards. See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). It is appellant's burden to show by a preponderance of the evidence trial counsel's performance was deficient in that it fell below the prevailing professional norms and the deficiency prejudiced the defendant. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance. We do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Id. Any allegation of ineffectiveness must be firmly founded in the record. The court of criminal appeals has made clear that, in most cases, a silent record providing 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). Further, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Id. at 111. Here, the record before us does not contain any explanation by appellant's trial attorney of his trial strategy. Nevertheless, we can ascertain from the record that counsel was pursuing, as best he could, a strategy of showing how appellant's successful participation in probation would keep him medicated and no longer a threat to his former girlfriend or her family. Counsel attempted to show that, given the proper medication, appellant felt remorse for his actions and wanted the best for his former girlfriend. The record does not show why counsel pursued this particular strategy, but it is clear that appellant wanted to show the court he had changed in a way that made him a good candidate for probation. We conclude appellant has failed to meet his burden of showing deficient performance by trial counsel. Accordingly, we resolve his sole issue against him. We affirm the trial court's judgment.