NO. 07-07-0222-CR
NO. 07-07-0223-CR
NO. 07-07-0225-CR
NO. 07-07-0226-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
SEPTEMBER 23, 2008
______________________________
LINDSEY FORD JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NOS. 2006-413,878, 2006-413,889, 2006-413,895, and 2006-414,532;
HONORABLE JIM BOB DARNELL, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ORDER DENYING MOTION FOR EXTENSION
Appellant, Lindsey Ford Jr., has filed a motion wherein he requests that this Court grant him additional time to file a motion for rehearing in each of four appeals referenced above. For the reasons stated, said motion is denied.
Discussion
On June 24, 2008, this Court issued its opinion in No. 07-07-0222-CR, affirming Appellant’s conviction for the offense of forgery. At the same time, this Court issued its opinion in No. 07-07-0223-CR, 07-07-0225-CR, and 07-07-0226-CR, affirming Appellant’s three convictions for the offense of burglary of a habitation. The judgment of this Court was entered on the same day in each cause. On August 13, 2008, Appellant, acting pro se, filed his Motion for Extention (sic) of Time, requesting that this Court grant him additional time to file a motion for rehearing.
A motion for rehearing may be filed within 15 days after the court of appeals’ judgment or order is rendered. Tex. R. App. P. 49.1. A court of appeals may extend the time for filing a motion if a party files a motion complying with Rule 10.5(b) no later than 15 days after the last date for filing the motion for rehearing. Tex. R. App. P. 49.8. A motion complies with Rule 10.5(b) if it states (A) the deadline for filing the item in question; (B) the length of extension sought; (C) the facts relied on to reasonably explain the need for an extension; and (D) the number of previous extensions granted regarding the item in question. Tex. R. App. P. 10.5(b).
The judgment of this Court was entered on June 24, 2008; therefore, the deadline for filing a motion for rehearing was July 9, 2008. Appellant’s motion was filed on August 13, 2008, more than 15 days after the last date for filing the motion for rehearing. Because Appellant’s motion for extension of time was not timely filed, we need not address whether the motion complied with the requirements of Rule 10.5(b).
Appellant’s motion for extension of time is denied.
Patrick A. Pirtle
Justice
Do not publish.
"font-size: 12pt">Discussion
The adequacy of defense counsel's assistance is based on the totality of the representation rather than isolated acts or omissions. Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). Although the constitutional right to counsel ensures the right to reasonably effective counsel, it does not guarantee errorless counsel whose competency or accuracy of representation is judged by hindsight. Robertson v. State, 187 S.W.3d 475, 483 (Tex.Crim.App. 2006).
Strickland v. Washington is the seminal case setting forth the standard for ineffective assistance of counsel claims under the United States Constitution. 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The Court in Strickland established a two-pronged test for analyzing a claim of ineffective assistance of counsel. Reversal requires an appellant demonstrate (1) counsel’s representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the appellant. 466 U.S. at 687, 104 S.Ct. at 2064. See also Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex.Crim. App. 1986) (applying Strickland standard under Texas constitution).
The first prong of the Strickland test requires an appellant prove that counsel made such serious errors that he did not function as the “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S. Ct. 2064. Appellant must show that counsel’s performance was unreasonable under prevailing professional norms and that the challenged action was not sound trial strategy. 466 U.S. at 689-90, 104 S.Ct. at 2065-66. The second Strickland prong requires an appellant “show a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different.” Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). “Reasonable probability” means probability of a degree sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
An appellant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Mitchell, 68 S.W.3d at 642. Our review of counsel’s performance is highly deferential and a strong presumption exists that counsel’s conduct fell within a wide range of reasonable professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001); see Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (noting there are countless ways to provide effective assistance in any given case). To overcome the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly rooted in the record. Thompson, 9 S.W.3d at 813-14. In the majority of cases, the record on direct appeal is inadequate to show that counsel’s conduct fell below an objectively reasonable standard of performance; thus, the better course is to pursue the claim in habeas proceedings. Mitchell, 68 S.W.3d at 642. Absent evidence of counsel’s reasons for the challenged conduct, we will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001).
We turn first to appellant’s claim that counsel was ineffective by not requiring the State to prove the enhancement paragraph’s allegation that he was convicted of robbery in Lubbock County in January 2000. We find the claim without merit.
Appellant plead “true” to the enhancement paragraph, and persisted in his plea after the trial court’s admonitions concerning the effects of his plea. He points to no place in the record showing that his lawyer was responsible for his decision to plead true. His brief refers to his incomplete formal education, and asserts that he deferred to his lawyer’s advice regarding trial strategy. But nothing in the record shows what his lawyer advised appellant with regard to his plea to the enhancement allegation. For that reason alone, his claim thus cannot be “firmly rooted in the record.” Thompson, 9 S.W.3d at 813-14.
Moreover, even if we assume his lawyer was responsible for the decision to plead true, appellant points to nothing in the record suggesting the outcome of his trial would have been different had he required the State to prove his Lubbock County robbery conviction.
In support of his argument under this issue, appellant directs us to Lyons v. McCotter, 770 F.2d 529 (5th Cir. 1985), a federal habeas proceeding in which the petitioner successfully argued his Texas state court trial counsel rendered ineffective assistance during his trial for aggravated robbery. The Fifth Circuit’s opinion says the State’s evidence against Lyons was “far from overwhelming.” 770 F.2d at 533 n.5. During the guilt-innocence phase of trial, his counsel allowed evidence that Lyons had previously been convicted of robbery and later paroled to be admitted without objection, and failed to request an instruction limiting the jury’s consideration of that evidence. Id. at 534. The appellate court found that the evidence would have been excluded on proper objection. Id. In that circumstance, the court thus concluded counsel’s failure to object had no strategic value and undermined the reliability of Lyons’ conviction. Id.
It can readily be seen that the circumstance in Lyons bears little resemblance to appellant’s. Here, appellant plead guilty in each case and admitted the truth of the enhancement offense on questioning by the trial court. Appellant does not contend that evidence of the enhancement conviction would have been excludible had he plead “not true” and his counsel objected to the evidence. Lyons does not assist appellant. We overrule his first issue.
In his second issue, appellant complains that his trial counsel failed to offer evidence in mitigation of punishment. The record shows that after the State rested appellant’s counsel requested and received a fifteen minute recess during which he and appellant conferred. When trial resumed counsel announced appellant rested because appellant chose not to testify and the defense would have no witnesses. The record does not tell what, if any, mitigation evidence appellant possessed and why counsel chose not to present this evidence if it existed. We will not speculate on the question, for, again, a claim of ineffective assistance is “not built on retrospective speculation; [it] must be ‘firmly founded in the record.’” Bone v. State, 77 S.W.3d at 828, 835 (Tex.Crim.App. 2002). And the record must affirmatively demonstrate the ineffectiveness. Thompson, 9 S.W.3d at 813-14. The record here does not establish that counsel’s actions with regard to the presentation of mitigating evidence were ineffective. Cf. Thompson, 9 S.W.3d at 814 n.6 (“in the vast majority of cases, the undeveloped record on direct appeal will be insufficient for an appellant to satisfy the dual prongs of Strickland”). Without record evidence of what, if any, mitigating evidence was available to appellant and counsel’s reasons for not offering such evidence as existed, appellant is unable to overcome the presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.
Relying on Ex parte Gonzales, 204 S.W.3d 391 (Tex.Crim.App. 2006), appellant argues his counsel was required to “make a minimal attempt to present” evidence in mitigation of punishment. As the State points out, Gonzales was a habeas corpus proceeding following the applicant’s conviction of capital murder and sentence of death. Id. at 393. Important to this discussion, the court in Gonzales was reviewing a well- developed habeas record describing potential mitigation evidence as well as trial counsel’s statement that his failure to investigate the described evidence was not strategic. Id. at 394-96. The court’s reference in Gonzales to facts developed in the habeas proceeding underscores why direct appeal ordinarily does not present a record sufficient for a proper Strickland review. For that reason, Gonzales actually supports our conclusion appellant’s second issue also must be overruled, and we do so.
Conclusion
Having overruled appellant’s two issues, we affirm the five judgments of the trial court appellant challenged by this appeal.
James T. Campbell
Justice
Publish.