Opinion
No. 05-05-01002-CR
Opinion Filed July 26, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F02-34616-LI. Affirm.
Before Justices WHITTINGTON, BRIDGES, and RICHTER.
OPINION
John Charles Brashear appeals his jury conviction and sixteen-year sentence for aggravated sexual assault of a child. In a sole issue, Brashear asserts his counsel was ineffective because counsel (i) "impeached him [during guilt-innocence] with [an inadmissible] thirty-year old prior felony conviction" of which the State "probably was unaware" and also (ii) "refused to argue to the jury on his behalf" during punishment. Finding against Brashear, we affirm. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence (1) deficient performance and (2) prejudice. Busby v. State, 990 S.W.2d 263, 268 (Tex.Crim.App. 1999). To establish deficient performance, the appellant must show that counsel's actions did not result from strategic design and fell below "prevailing professional norms." See Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). To establish prejudice, the appellant must show a reasonable probability that the trial's result would have been different but for counsel's deficient performance. Ex parte Cash, 178 S.W.3d 816, 818 (Tex.Crim.App. 2005); Cardenas, 30 S.W.3d at 391. In determining whether counsel provided effective assistance, we look to the totality of the representation and strongly presume counsel's competence. Thompson, 9 S.W.3d at 813. We do not judge counsel's trial decisions in hindsight and will find counsel was ineffective only if the claim is firmly founded in the record. Id.; Goodrich v. State, 156 S.W.3d 141, 150 (Tex.App.-Dallas 2005, pet. ref'd). Without the required showing of deficient performance or sufficient prejudice, the presumption of reasonable counsel will not be overcome. Cash, 178 S.W.3d at 818; Thompson, 9 S.W.3d at 813. We need not determine whether counsel's performance here was deficient because even if it was, Brashear has not shown any prejudice. In arguing he was prejudiced by his counsel's performance, Brashear simply states in a conclusory fashion that "there is a reasonable probability that, but for defense counsel's unprofessional errors, the result of the proceeding would have been different." Brashear does not provide any substantive analysis or record references in support of his contention nor does he explain how the result would have been different. See Tex.R.App.P. 38.1(h) (appellate brief must contain concise argument for contentions made with appropriate citations to authorities and record); see also, e.g., Cash, 178 S.W.3d at 818-19 (overruling ineffective assistance of counsel claim where no showing that jury would have reached "more favorable penalty-phase verdict" had counsel filed "proper" motion for probation); Cardenas, 30 S.W.3d at 391 (overruling ineffective assistance of counsel claim where no argument developed as to how outcome would have been different if counsel had lodged certain objection). Because Brashear has failed to show any prejudice, we cannot conclude he has overcome the presumption of reasonable counsel nor established his counsel was ineffective. We resolve Brashear's sole issue against him. We affirm the trial court's judgment.