IN THE
TENTH COURT OF APPEALS
No. 10-06-00016-CR
Stephen Craig Holland,
Appellant
v.
The State of Texas,
Appellee
From the County Court
Falls County, Texas
Trial Court No. 05-06541
MEMORANDUM Opinion
Holland appeals his conviction for misdemeanor assault. See Tex. Penal Code Ann. § 22.01(a)-(c) (Vernon Supp. 2006). We affirm.
In Holland’s one issue, he contends that his trial counsel failed to render the effective assistance of counsel. Holland argues that trial counsel failed to request a limiting instruction on impeachment evidence, and failed to object to and failed to request a limiting instruction on extraneous-offense evidence.
“In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI; see Rompilla v. Beard, 545 U.S. 374, 380 (2005); Strickland v. Washington, 466 U.S. 668 (1984). “Ineffective assistance under Strickland [v. Washington] is deficient performance by counsel resulting in prejudice, with performance being measured against an ‘objective standard of reasonableness,’ ‘under prevailing professional norms.’” Rompilla at 380 (quoting Strickland at 687, 688). “[T]o establish prejudice, a ‘defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” Wiggins v. Smith, 539 U.S. 510, 534 (2003) (quoting Strickland at 694); see Rompilla at 390.
“[C]ounsel is ‘strongly presumed’ to make decisions in the exercise of professional judgment.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (quoting Strickland, 466 U.S. at 690). “That presumption has particular force where a petitioner bases his ineffective-assistance claim solely on the trial record, creating a situation in which a court ‘may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive.’” Id. at 5-6 (quoting Massaro v. United States, 538 U.S. 500, 505 (2003)) (internal citation omitted). “A Strickland claim must be ‘firmly founded in the record’ and ‘the record must affirmatively demonstrate’ the meritorious nature of the claim.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)); accord Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). “In the absence of anything in the record affirmatively demonstrating otherwise, we presume that . . . counsel made a reasonable and strategic decision . . . .” Salinas at 740.
Direct appeal is usually an inadequate vehicle for raising [an ineffective-assistance] claim because the record is generally undeveloped. This is true with regard to the question of deficient performance—in which counsel’s conduct is reviewed with great deference, without the distorting effects of hindsight—where counsel’s reasons for failing to do something do not appear in the record.
Goodspeed at 392 (internal footnotes omitted); see Wiggins, 539 U.S. at 523; Strickland, 466 U.S. at 689; Thompson at 814. “[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.” Goodspeed at 392 (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)); accord Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005). “Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was ‘so outrageous that no competent attorney would have engaged in it.’” Goodspeed at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
In particular, a silent record does not establish ineffective assistance in not objecting to evidence or not requesting a limiting instruction. See Ex parte Varelas, 45 S.W.3d 627, 632 (Tex. Crim. App. 2001); Tong v. State, 25 S.W.3d 707, 713-14 (Tex. Crim. App. 2000) (op. on orig. submission).
The record does not contain the reasons for trial counsel’s conduct. Nor does the record establish that the trial court would have erred in denying a request for a jury instruction in Holland’s bench trial. Holland does not establish that trial counsel did not render the effective assistance of counsel. We overrule Holland’s issue.
Having overruled Holland’s sole issue, we affirm.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed April 18, 2007
Do not publish
[CR25]
writ), and admissions of contributing to causing a collision, see Chandler v. Newland, 542 S.W.2d 731, 732-33 (Tex. Civ. App.—Fort Worth 1976, no writ). Harkins correctly cites a case distinguishing causation from negligence. See Risinger v. Shuemaker, 160 S.W.3d 84, 90 (Tex. App.—Tyler 2004, pet. denied). Harkins testified at trial that her actions were a cause of Zelbst’s damages. But Harkins did not testify that she was negligent, that is, that her actions were not those of a person of ordinary prudence under the circumstances. To the contrary, she testified that she reasonably believed that the traffic would continue to move while she briefly tended to her child, and that she could safely move forward as well.
Considering all the evidence, we hold that the jury’s answer to Question No. 1 was not contrary to the great weight and preponderance of the evidence so as to be clearly wrong and unjust. We overrule Zelbst’s issue.
Having overruled Zelbst’s sole issue, we affirm.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Justice Vance concurs in the judgment)
Affirmed
Opinion delivered and filed May 21, 2008
[CV06]