Oliver Knight v. State

                     NO. 12-03-00347-CR

 

IN THE COURT OF APPEALS


TWELFTH COURT OF APPEALS DISTRICT


TYLER, TEXAS



OLIVER KNIGHT,                                            §     APPEAL FROM THE 114TH

APPELLANT


V.                                                                         §     JUDICIAL DISTRICT COURT OF


THE STATE OF TEXAS,

APPELLEE                                                        §     SMITH COUNTY, TEXAS






MEMORANDUM OPINION

            Oliver Knight appeals his conviction for aggravated assault, for which he was sentenced to imprisonment for ten years and fined ten thousand dollars. Appellant raises one issue on appeal. We affirm.

Background

            Appellant was charged by indictment with aggravated assault. Appellant pleaded “not guilty,” and the matter proceeded to trial by jury. The State made its opening statement. Appellant reserved his opening statement until the State had put on its evidence. After the State rested its case-in-chief, Appellant’s attorney rested without introducing evidence or calling any witnesses. Following closing argument, the jury found Appellant guilty as charged.

            The matter proceeded to a trial on punishment. After the State rested, Appellant called his son as a witness. Ultimately, the jury assessed Appellant’s punishment at imprisonment for ten years and a probated fine of ten thousand dollars. The trial court sentenced Appellant accordingly, and this appeal followed.


Ineffective Assistance of Counsel

            In his sole issue, Appellant argues that he received ineffective assistance of counsel. Specifically, Appellant contends that his counsel was ineffective for the following reasons: (1) He waived making an opening statement in the guilt-innocence phase of the trial; (2) he did not call any witnesses in the guilt-innocence phase of the trial; (3) he did a less than adequate job of cross-examining the State’s witnesses; (4) his closing argument was restricted to matters outside the record, to which the trial court sustained six of the State’s objections; (5) he waived making an opening statement during the punishment phase of the trial; and (6) he called only one witness during the punishment phase of the trial, from whom the State was able to elicit testimony adverse to Appellant.

            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, Appellant chronicles, in great detail, his attorney’s allegedly poor performance at trial. Yet, Appellant acknowledges that his claim had “a slim chance of prevailing on direct appeal because the undeveloped record on appeal generally is too insufficient to allow a Defendant to satisfy the two prongs of ... [the Strickland test].” Indeed, the record is silent as to the reasons underlying Appellant’s counsel’s alleged ineffective acts and omissions during the trial of the case at hand. As a result, Appellant cannot overcome the strong presumption that his counsel performed effectively. Therefore, 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. Thus, we cannot conclude that Appellant's trial counsel was ineffective. Appellant’s sole issue is overruled.


Conclusion

Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                                                     JAMES T. WORTHEN

                                                                                                                 Chief Justice


Opinion delivered September 30, 2004.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.




(DO NOT PUBLISH)