NO. 12-03-00030-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JOHN B. BAREFOOT,§ APPEAL FROM THE
APPELLANT
V.§ COUNTY COURT AT LAW #2
THE STATE OF TEXAS,
APPELLEE§ SMITH COUNTY, TEXAS
MEMORANDUM OPINION
John B. Barefoot ("Appellant") appeals his conviction for criminal trespass, for which he was sentenced to confinement for one hundred eighty days and fined one thousand five hundred dollars. Appellant raises two issues on appeal. We affirm.
Background
Appellant was charged by information with criminal trespass and pleaded "not guilty." The matter proceeded to jury trial. During voir dire, Appellant's counsel asked the venire if anyone just wanted to hear Appellant's side of the story. As a result of this question, the following exchange occurred:
[VENIREPERSON]: Uh-huh.
[APPELLANT'S COUNSEL]: If he didn't testify, however, would you hold it against him in any way?
[VENIREPERSON]: Well, I couldn't - I don't know, but I would like to hear his side, because that way, to
me, I would know whether to say whether he was guilty or not guilty.
[APPELLANT'S COUNSEL]: Might make you -
[VENIREPERSON]: And him not testifying and letting us know his side, then that's going to make it - make
me kind of not for sure -
... .
[APPELLANT'S COUNSEL]: Yes, ma'am. And if the Judge told you he has the right to testify and not to
testify, don't hold it against him if he doesn't testify, could you follow that?
[VENIREPERSON]: I think I could.
Appellant's counsel did not seek to strike the venireperson that was a party to the aforementioned exchange and she was ultimately seated on the jury.
With the jury empaneled, the State proceeded to make its opening statement, during which the prosecuting attorney stated that Appellant was the prime suspect in an aggravated assault, which was why deputies were looking for him on the night in question. Appellant's counsel did not object to the prosecuting attorney's statement. At the conclusion of a trial on the merits, the jury found Appellant guilty as charged. Thereafter, the trial court sentenced Appellant to confinement for one hundred eighty days and fined Appellant one thousand five hundred dollars. This appeal followed.
Ineffective Assistance of Counsel
In issues one and two, Appellant argues that his trial counsel was ineffective because (1) he failed to strike the aforementioned venireperson, and (2) he failed to object to the prosecuting attorney's statement that Appellant was the prime suspect in a recent aggravated assault case. Claims of ineffective assistance of counsel are evaluated under the two-step analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). The first step requires the appellant to demonstrate that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any portion of trial counsel's representation, but will judge the claim based on the totality of the representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
To satisfy the Strickland standard, the appellant is also required to show prejudice from the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To establish prejudice, an appellant must prove that but for counsel's deficient performance, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
In any case considering the issue of ineffective assistance of counsel, we begin with the strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We must presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See id. Appellant has the burden of rebutting this presumption by presenting evidence illustrating why his trial counsel did what he did. See id. Appellant cannot meet this burden if the record does not affirmatively support the claim. See Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998) (inadequate record on direct appeal to evaluate whether trial counsel provided ineffective assistance); Phetvongkham v. State, 841 S.W.2d 928, 932 (Tex. App.-Corpus Christi 1992, pet. ref'd, untimely filed) (inadequate record to evaluate ineffective assistance claim); see also Beck v. State, 976 S.W.2d 265, 266 (Tex. App.-Amarillo 1998, pet. ref'd) (inadequate record for ineffective assistance claim, citing numerous other cases with inadequate records to support ineffective assistance claim). A record that specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd).
In the case at hand, the record is silent as to the reasons Appellant's trial counsel chose the course he did. Thus, as to the alleged deficiencies in his trial counsel's performance, we hold that Appellant has not met the first prong of Strickland because the record does not contain evidence concerning Appellant's trial counsel's reasons for choosing the course he did. Therefore, we cannot conclude that Appellant's trial counsel was ineffective. Appellant's issues one and two are overruled.
Conclusion
Having overruled Appellant's issues one and two, we affirm the judgment of the trial court.
SAM GRIFFITH
Justice
Opinion delivered October 29, 2003.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
(DO NOT PUBLISH)