Affirmed and Memorandum Opinion filed August 5, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-01021-CR
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JOHN RENE ROBERTS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Cause No. 01CR1205
M E M O R A N D U M O P I N I O N
Although charged with murder, a jury found appellant guilty of the lesser-included offense of manslaughter and assessed punishment at twelve years’ confinement. In a single issue, appellant argues he received ineffective assistance of counsel. The facts of this appeal are known to the parties; we do not recite them here. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.1. We affirm.
To succeed on his complaint, appellant must demonstrate both objectively deficient performance by his attorney and a reasonable probability of prejudice. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2064–65 (1984); Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Generally, counsel should be given the opportunity to explain his actions before being condemned as unprofessional and incompetent. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). An ineffectiveness claim must be firmly founded in the record. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Here, appellant argues his counsel was ineffective in not objecting to testimony (and consequently, not requesting a limiting instruction or mistrial) of appellant’s drinking habits and his previous attack on his wife (resulting in her broken arm). Appellant contends both were irrelevant to his prosecution for murder, and that the latter was an extraneous offense. The record before us is silent regarding why counsel failed to object: there was no motion for new trial, nor was defense counsel given an opportunity to explain himself. See Bone, 77 S.W.3d at 836. In its brief, the State points to portions of the record indicating the door had already been opened on these issues, and thus defense counsel had no basis for objecting to them later. Moreover, the State suggests other possible trial strategies for the failure to object: to explain appellant’s relationship with the complainant’s fiancé and her family, and to discredit the testimony of the complainant’s fiancé by having appellant’s wife testify he had never broken her arm. We find this is not one of those rare cases in which the evidence overcame the presumption that counsel's inaction was part of a strategic plan. See id.; Tong v. State, 25 S.W.3d 707, 713 (Tex. Crim. App. 2000). The judgment is affirmed.
/s/ Scott Brister
Chief Justice
Judgment Rendered and Memorandum Opinion filed August 5, 2003.
Panel consists of Chief Justice Brister and Justices Hudson and Fowler.
Do Not Publish – Tex. R. App. 47.2(b)