Opinion issued September 25, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-01184-CR
EDWARD DAROME BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 871598
MEMORANDUM OPINION
Appellant, Edward Darome Brown, was charged by indictment with the felony offense of possession of a controlled substance, namely cocaine. After entering a plea of not guilty, the jury found appellant guilty of possession of a controlled substance.
Appellant pled true to two enhancement paragraphs, and the trial court assessed punishment at 50 years’ imprisonment.
In his sole point of error, appellant asserts that he was denied effective assistance of counsel.
We affirm.
Analysis
In his sole point of error, appellant claims that his trial counsel rendered ineffective assistance of counsel by failing to object to hearsay.
To determine if a defendant has been denied effective assistance of counsel, we follow the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Strickland has been adopted as the applicable standard under the Texas Constitution. See Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000) (citing Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986)).
First, appellant must demonstrate that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064; Howland v. State, 966 S.W.2d 98, 104 (Tex. App.—Houston [1st Dist.] 1998), aff’d, 990 S.W.2d 274 (Tex. Crim. App. 1999). Second, appellant must establish that counsel’s performance was so prejudicial that it deprived him of a fair trial. Howland, 966 S.W.2d at 104. Thus, appellant must show that a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Howland, 966 S.W.2d at 104. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Hernandez, 726 S.W.2d at 55. Appellant has the burden to establish both of these prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998); Davis v. State, 830 S.W.2d 762, 765 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). We cannot speculate beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Appellant must overcome the presumption that trial counsel’s strategy was sound. Gamble, 916 S.W.2d at 93.
An appellant “making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Strickland, 466 U.S. at 690; 104 S. Ct. at 2066. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Under normal circumstances, 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 decision-making as to overcome the presumption that counsel’s conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
No motion for new trial was filed. The record is silent as to what trial counsel’s trial strategy was. To find that trial counsel was ineffective based on appellant’s asserted argument would call for us to speculate, which we will not do. Gamble, 916 S.W.2d at 93.
We overrule appellant’s sole point of error.
Conclusion
We affirm the judgment of the trial court.
Laura C. Higley
Justice
Panel consists of Justices Hedges, Nuchia, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).