NUMBER 13-03-242-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
TRACEY MICHELLE WILSON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 263rd District Court of Harris County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Rodriguez, and Garza
Memorandum Opinion by Justice Yañez
A jury convicted appellant, Tracey Wilson, of forgery of a commercial instrument and assessed punishment at eighteen months confinement and a $2000.00 fine. By two issues, appellant challenges her conviction. She contends that the trial court erred in limiting cross-examination of the State’s witness and that her trial counsel was ineffective because she: (1) erroneously elicited inadmissible hearsay; and (2) allowed Officer Bryant to state that in his opinion, appellant was the right person to be charged with forgery. We affirm.
The record contains the trial court’s certification that this case is not a plea-bargain case, and the defendant has the right of appeal. See Tex. R. App. P. 25.2(a)(2).
As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4.
By her first issue, appellant argues specifically that the trial court erred by sustaining an objection that limited cross-examination of the State’s witness, Lonnie Guinn. Appellant’s counsel was attempting to show that Guinn misidentified appellant as the person who committed forgery. Appellant claims that in sustaining the objection, the trial court unconstitutionally denied her the ability to adequately develop her defense theory.
In order to preserve error for review, a defendant must make a bill of exception or an offer of proof of the questions she would have asked and the answers she expected to receive had she been permitted to question the witness further. See Tex. R. App. P. 33.2; Koehler v. State, 679 S.W.2d 6, 9 (Tex. Crim. App. 1984). Here, the record shows that appellant failed to make a bill of exception or offer of proof. Appellant failed to preserve this issue for review. Accordingly, appellant’s first issue is overruled.
In her second issue, appellant contends that her trial counsel was ineffective because during cross-examination of Officer Bryant, she: (1) elicited inadmissible hearsay testimony from Officer Bryant; and (2) asked Officer Bryant whether appellant was the right person to be charged with forgery.
In order to prevail on a claim of ineffective assistance of counsel, appellant must show by a preponderance of the evidence that: (1) trial counsel’s performance was deficient in that it fell below the prevailing professional norms; and (2) the deficiency prejudiced appellant, and but for the deficiency, a reasonable probability exists that the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687 (1980). A reasonable probability is a probability sufficient to undermine confidence in the outcome. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
The determination regarding whether a defendant received effective assistance of counsel must be made according to the facts of each case. See id. at 813. An appellate court looks to the totality of the representation and the particular circumstances of the case in evaluating the effectiveness. Id.
There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. See Davis v. State, 930 S.W.2d 765, 767 (Tex. App.–Houston [1st Dist.] 1996, pet. ref’d). To defeat the presumption of reasonable professional assistance, “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). In most cases, a silent record that provides no explanation for counsel’s actions will not overcome the strong presumption of reasonable assistance. See Thompson, 9 S.W.3d at 813-14.
Here, appellant failed to meet the first prong of Strickland. The record does not show that a motion for new trial was filed based on ineffective assistance of counsel. Further, the record does not reflect why trial counsel elicited hearsay testimony or explain trial counsel’s reason for asking Officer Bryant for his opinion. Consistent with Strickland, we must presume that all significant decisions were made in the exercise of reasonable professional judgment. See Strickland, 466 U.S. at 687. In light of the entire record, we conclude that appellant has not met her burden of showing that trial counsel's assistance was ineffective. Accordingly, appellant’s second issue is overruled.
The judgment of the trial court is affirmed.
LINDA REYNA YAÑEZ
Justice
Do not publish. Tex. R. App. P. 47.2(b).
Memorandum opinion delivered and filed this the
5th day of August, 2004.