Opinion
No. 05-04-01187-CR
Opinion issued November 4, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-72839-M. Affirmed.
Before Justices WHITTINGTON, FRANCIS, and LANG.
MEMORANDUM OPINION
Von Veracruz appeals his conviction for indecency with a child younger than seventeen years of age. See Tex. Pen. Code Ann. § 21.11(a)(1) (Vernon 2003). After finding appellant guilty as charged, the jury assessed punishment at four years' confinement and a fine of $1000. In a single issue, appellant claims he received ineffective assistance of counsel at trial. We affirm the trial court's judgment. In his sole issue on appeal, appellant claims trial counsel was ineffective for failing to (i) have an effective trial strategy through both phases of trial, (ii) object to the admission of certain evidence, and (iii) fully cross-examine a witness, thereby requiring trial counsel to call the witness as a defense witness. Appellant claims we must reverse his convictions because "trial counsel's manifold errors" resulted in ineffective assistance of counsel. We disagree. We examine ineffective assistance of counsel claims under 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's burden is to show by a preponderance of the evidence (i) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (ii) 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; rather, we strongly presume counsel's competence. Thompson, 9 S.W.3d at 812. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Goodspeed v. State, 2005 WL 766996, at *2 (Tex.Crim.App. Apr. 6, 2005); Thompson, 9 S.W.3d at 812. Direct appeal is usually an inadequate vehicle for raising an ineffective assistance of counsel claim because the record is generally undeveloped. Goodspeed, 2005 WL 766996, at *2. In most cases, 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 v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813-14. Furthermore, counsel should 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. Although appellant filed a motion for new trial, the complaint raised in his motion was that the "verdict is contrary to the law and the evidence." His motion did not allege he received ineffective assistance of counsel at trial. There was no hearing on the motion for new trial and, as a result, counsel was not given an opportunity to explain his actions or trial strategy. Therefore, as was the case in Goodspeed and Thompson, the record provides no discussion of trial counsel's purported errors. It contains no discernible explanation of the motivation behind counsel's decision not to object to Detective Burge's testimony or his decision to later call the detective as a defense witness. Nor does it contain any discussion of counsel's trial strategy. Because the record is silent regarding any explanation for counsel's actions, 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 off 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). We overrule appellant's sole issue. We affirm the trial court's judgment.