No. 13-06-230-CR
Memorandum opinion delivered and filed this July 5, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On appeal from the 264th District Court of Bell County, Texas.
Before Justices YAÑEZ, RODRIGUEZ, and GARZA.
LINDA REYNA YAÑEZ, Justice.
A jury found appellant, Matthew Leasau, guilty of indecency with a child. Pursuant to appellant's election, the trial court sentenced him to five years' imprisonment. In a single issue, appellant contends he was denied effective assistance of counsel because counsel failed to inform him that his election to have the trial court assess punishment precluded the possibility of community supervision. We affirm.
Background
The victim, a sixteen-year-old neighbor of appellant, testified that she was walking home one night when appellant called her over, pushed her up against a wall, and forcibly kissed her and fondled her breasts and genitals. Appellant pleaded "not guilty" and filed a pre-trial application for community supervision, which serves as an election for the jury to assess punishment. However, prior to the commencement of voir dire, appellant's counsel announced that appellant wished to change his election and have the trial court assess punishment. The trial court questioned appellant, and appellant confirmed that he wished to have the court assess punishment. The jury found appellant guilty and the court assessed punishment. Appellant contends he was denied effective assistance because his counsel failed to advise him that the trial court could not consider imposing community supervision if the jury found him guilty. Standard of Review and Applicable Law
Claims alleging ineffective assistance of counsel are evaluated under the familiar standard of Strickland v. Washington, which requires that the defendant prove: (1) that counsel's representation or advice fell below objective standards of reasonableness; and (2) the result of the proceeding would have been different but for trial counsel's deficient performance. The defendant bears the burden of proving this claim by a preponderance of the evidence. In order for an appellate court to find trial counsel ineffective, "[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Generally, when the record is silent as to counsel's motivations for tactical decisions, an appellant cannot overcome the "strong presumption that counsel's conduct was reasonable." "In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions." Unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it," appellate courts will not speculate in order to find trial counsel's reasoning or strategy rendered his performance deficient. Analysis Appellant has failed to show either prong of Strickland: (1) that his counsel's representation fell below an objective standard of reasonableness, or (2) but for his counsel's errors, there is a reasonable probability that the outcome of the trial would have been different. Appellant simply asserts that because "the record is silent" as to whether counsel advised him of the consequences of having the judge impose punishment, "there is no indication" and "it does not appear" that counsel did so. In support of his argument, appellant cites Gallegos v. State, 756 S.W.2d 45, 48 (Tex.App.-San Antonio 1988, pet. ref'd). We find Gallegos distinguishable. In Gallegos, the San Antonio Court found counsel ineffective for failing to advise the defendant that his waiver of a jury at the punishment stage prohibited him from receiving probation from the trial court. However, in Gallegos, the defendant's "counsel stated that he knew that the court could not grant probation but that he did not tell appellant because it did not occur to him." In the present case, there is nothing in the record establishing that appellant's trial counsel failed to advise appellant of the consequences of electing that the trial court impose punishment. The record does not contain a motion for new trial, and there is no affidavit from appellant's trial counsel explaining his actions or inactions. Here, the acts or omissions complained of do not appear in the record. Because the record is silent regarding counsel's alleged failure to advise appellant, it is insufficient to overcome the strong presumption that counsel's conduct was reasonable. We overrule appellant's sole issue and affirm the trial court's judgment.