No. 05-09-00615-CR
Opinion issued June 29, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 219th Judicial District Court Collin County, Texas, Trial Court Cause No. 219-82020-08.
Before Justices BRIDGES, FITZGERALD, and FILLMORE.
Opinion By Justice BRIDGES.
Appellant William Lester Seelye appeals his conviction for the offense of theft of property of the value of $200,000 or more/aggregated and his accompanying sentence of 99 years in the Institutional Division, Texas Department of Criminal Justice and a fine of $10,000. We affirm.
Background
Appellant William Lester Seelye sought investors to reopen previously capped oil wells. The State alleged: (1) appellant received money from investors, but never actually began drilling, (2) the wells never produced anything other than a minimal amount, and (3) appellant spent the investors' money on personal expenses unrelated to the oil production business. The State further argued none of the investors received the profits promised and most never received a return of any portion of their initial expenditure on the project. Following a multi-day trial and the admission of approximately 150 exhibits by the State, the jury convicted appellant of theft of property of the value of $200,000 or more/aggregated. Appellant filed a motion for new trial, which was overruled by operation of law. This appeal ensued. Analysis
In a single issue, appellant contends he received ineffective assistance of counsel at trial. Specifically, he argues his trial counsel was ineffective because he failed to lodge a hearsay objection to exhibit 33, an original petition in a civil lawsuit, and exhibit 35, a motion in the same lawsuit. Appellant also alleges he received ineffective assistance of counsel because he failed to lodge a Rule 404(b) objection to exhibits 137-146, Railroad Commission records of civil administrative penalty cases against appellant that do not involve the offense of theft. A claim of ineffective assistance of counsel is reviewed under the Strickland test. Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668 (1984)). In determining whether counsel rendered ineffective assistance, an appellate court considers two factors: (1) whether counsel's performance fell below an objective standard of reasonableness and (2) whether, but for counsel's deficient performance, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex Crim. App. 1999). Appellant bears the burden of proving his counsel was ineffective by a preponderance of the evidence. Thompson, 9 S.W.3d at 813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813. To defeat this presumption, appellant must prove that there was no plausible professional reason for a specific act or omission. Bone, 77 S.W.3d at 836. Any allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Thus, a reviewing court will rarely be able to fairly evaluate the merits of an ineffective assistance claim on direct appeal because the record on direct appeal is not developed adequately to reflect the reasons for defense counsel's actions at trial. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). Here, we do not have an adequate record to review appellant's claim of ineffectiveness. See id.; Thompson, 9 S.W.3d at 813-15. Appellant must prove that there is no possible strategic reason for counsel's actions and trial counsel should be given the opportunity to explain his actions before being denounced as "ineffective." Bone, 77 S.W.3d at 836. The record before us is devoid of evidence from trial counsel himself and is "simply undeveloped and cannot adequately reflect the failings of trial counsel." Thompson, 9 S.W.3d at 814 (citing Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998)). The record is silent as to why appellant's trial counsel chose not to: (1) lodge a hearsay objection to exhibits 33 and 35 or (2) lodge a Rule 404(b) objection to exhibits 137-146. Therefore, appellant has failed to rebut the presumption counsel's decisions were reasonable, and we overrule appellant's only issue. Bone v. State, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 813-14. Having overruled appellant's only issue, we affirm the judgment of the trial court.