Opinion
No. 05-08-00043-CR
Opinion issued May 29, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 6 Collin County, Texas, Trial Court Cause No. 006-84199-07.
Before Justices WRIGHT, O'NEILL, and LANG. Opinion By Justice WRIGHT.
MEMORANDUM OPINION
Cody Zachary Smith appeals his conviction for misdemeanor driving while intoxicated. After the jury found appellant guilty, the trial court assessed punishment at sixty days' confinement, probated for one year, and a $500 fine. In three issues, appellant contends (1) his Sixth Amendment right to confrontation was violated when Officers James Bunger and Randy Hooker did not produce certain documents in response to subpoena, (2) the State failed to provide him with Brady material, and (3) he was denied the effective assistance of counsel at trial. We overrule appellant's issues and affirm the trial court's judgment. Prior to trial, appellant filed subpoenas requesting, among other things, Bunger and Hooker to appear and produce training materials and other documents and policies of the Wylie Police Department regarding DWI arrests and enforcement. Both officers appeared and brought certain documents. Bunger provided his training and certification materials but testified he was unaware of any specific policies that were requested in the subpoena. Hooker testified "there's not a procedure about [DWI enforcement]. It's just one of the things that's covered under the penal code to enforce." Appellant did not object to the officers' failure to comply with the subpoenas and did not introduce the documents they brought into evidence. After hearing evidence and the argument of counsel, the jury found appellant guilty and he appealed. Six months later, appellant supplemented the record with certain documents including written procedures for DWI arrests and documents regarding an internal complaint against Hooker. In his first and second issues, appellant contends the failure to provide the documents he later supplemented into the record violated his confrontation rights and his right under Brady v. Maryland, 373 U.S. 83 (1963) to evidence favorable to his defense. In support of his arguments, he relies on the documents that were submitted to the trial court six months after he appealed his conviction. Newly available evidence may be presented to an appellate court either during a hearing on a motion for new trial or in a post conviction writ of habeas corpus. See Farris v. State, 712 S.W.2d 512, 516 n. 3 (Tex.Crim.App. 1986). The record shows these documents were not offered at trial, were not attached to the motion for new trial, nor presented at a hearing on the motion for new trial. Thus, these documents were not before the trial court, and they are not part of the record on appeal. Because appellant relies exclusively on documents that are not part of the appellate record, nothing in the appellate record supports his issues. We overrule appellant's first and second issues. In his third issue, appellant contends he did not receive the effective assistance of counsel at trial. In particular, appellant contends counsel failed to (1) obtain a ruling on his motion to suppress, (2) seek a jury instruction on the legality of his arrest, and (3) obtain Hooker's disciplinary history before trial. We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). Appellant has the burden to show by a preponderance of the evidence (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (2) the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. 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 but do not judge counsel's strategic decisions in hindsight. Id . Rather, we strongly presume counsel's competence. Id. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. "In the usual case in which an ineffective-assistance claim is made, 'the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional.'" Cannon v. State, 252 S.W.3d 342, 348-49 (Tex.Crim.App. 2008) (quoting Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002)). This is generally the case because a silent record provides no explanation for counsel's actions and therefore 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, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 813-14. Furthermore, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. Consequently, an application for writ of habeas corpus is the more appropriate vehicle to raise ineffective assistance of counsel claims. Rylander, 101 S.W.3d at 110. Here, appellant did not file a motion for new trial on ineffective assistance of counsel grounds. Thus, the record in this case provides no discussion of trial counsel's purported errors. Nor does the record contain any discernible explanation of the motivation behind counsel's failure to obtain a ruling on the motion to suppress, ask for a jury instruction on the legality of his arrest, or obtain Hooker's disciplinary files prior to trial. Although appellant insists counsel's actions cannot be characterized as strategic, there is nothing to affirmatively demonstrate otherwise. Based on the record before us, we can imagine a possible strategic motive for every action appellant criticizes. There are rare cases in which a record is sufficient for an appellate court to make a decision on the merits; however, this is not one of those rare cases. See Cannon, 252 S.W.3d at 349. Thus, we cannot conclude appellant has met his burden to overcome the strong presumption of reasonable assistance. See Freeman v. State, 125 S.W.3d 505, 506 (Tex.Crim.App. 2003) ("The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose of establishing this claim."); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (appellate court is not required to indulge in speculation concerning counsel's decision-making processes or to imagine reasons why counsel acted or failed to act in particular manner). Moreover, as previously noted, the complained-of disciplinary records are not part of the record in this appeal. Without the records available for our review, appellant cannot meet his burden to show there is a reasonable probability that the result of the proceeding would have been different without counsel's failure to obtain the records. We overrule appellant's third issue. Accordingly, we affirm the trial court's judgment.