COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00322-CR
NO. 02-12-00323-CR
NO. 02-12-00324-CR
NO. 02-12-00325-CR
NO. 02-12-00326-CR
NO. 02-12-00327-CR
NO. 02-12-00328-CR
NO. 02-12-00329-CR
NO. 02-12-00330-CR
NO. 02-12-00331-CR
NO. 02-12-00332-CR
NO. 02-12-00333-CR
PEDRO DOMINGUEZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
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CONCURRING MEMORANDUM OPINION1
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1
See Tex. R. App. P. 47.4.
As the majority correctly points out, the constitutional effectiveness of
counsel’s trial representation is examined under a two-pronged analysis:
deficient performance and prejudice. Of course, both need not be addressed: ―If
it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be
followed.‖ Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069
(1984); see Smith v. Robbins, 528 U.S. 259, 285–86, 120 S. Ct. 746, 765 (2000).
However, there are limited circumstances under which prejudice is presumed or
where the proven deficient performance will result in undermining confidence in
the outcome, i.e., prejudice. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068;
42 George E. Dix & John M. Schmolesky, Texas Practice Series: Criminal
Practice & Procedure § 29:78 (3d ed. 2011); cf. Kober v. State, 988 S.W.2d 230,
232–33 (Tex. Crim. App. 1999) (holding ―some possibility‖ that deficient
performance affected proceeding is insufficient to show prejudice).
In this case, Appellant did not file a motion for new trial raising ineffective
assistance of counsel that would have allowed counsel to explain any trial
strategy upon which his decision may have been based. There is absolutely no
record by which we may determine counsel’s reasons, if any, in advising
Appellant to plead guilty to burglary. An ineffective assistance claim must be
―firmly founded in the record‖ and ―the record must affirmatively demonstrate‖ the
meritorious nature of the claim. Menefield v. State, 363 S.W.3d 591, 592 (Tex.
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Crim. App. 2012) (citing Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999)).
Direct appeal frequently is an inadequate vehicle for raising an ineffective
assistance of counsel claim such as Appellant’s because the record is
undeveloped. See Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d at
813. This court’s scrutiny of counsel’s performance must be highly deferential,
and every effort must be made ―to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate
the conduct from counsel’s perspective at the time.‖ Strickland, 466 U.S. at 689,
104 S. Ct. at 2065. There is a strong presumption mandated by Strickland in
favor of a determination that counsel’s decision ―might be considered sound trial
strategy.‖ Id.
An appellate court is not required to indulge in speculation concerning
counsel’s decision-making processes or to imagine reasons why counsel gave
the advice he did. When the record is silent as to counsel’s reasons for
performing in the manner alleged, we cannot conclude that counsel’s
performance was deficient. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994); Lopez v. State, 80 S.W.3d 624, 629–30 (Tex. App.—Fort
Worth 2002), aff’d, 108 S.W.3d 293 (Tex. Crim. App. 2003). Thus, I would hold
that Appellant has failed to establish that his counsel’s assistance was
ineffective.
3
Because the record is absolutely silent regarding counsel’s trial strategy, I
respectfully suggest that to wade into the prejudice stream is premature in this
instance. Counsel seems to have advised his client to plead guilty to a burglary,
which would undermine Appellant’s defense to the eleven aggravated robbery
charges. Indeed, should counsel’s strategy be mistaken or completely absent,
prejudice conceivably could result to Appellant. See, e.g., Florida v. Nixon, 543
U.S. 175, 187, 125 S. Ct. 551, 560 (2004) (suggesting counsel may be ineffective
if he does not sufficiently consult with defendant regarding decision to plead
guilty); Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim. App. 1999) (noting
situations where prejudice presumed); Ex parte Battle, 817 S.W.2d 81, 84 (Tex.
Crim. App. 1991) (on habeas-corpus review, finding deficient performance and
prejudice based on counsel’s incorrect advice during plea-bargain process); Dix
& Schmolesky, supra, at § 29:78 (―Perhaps a defendant shows prejudice in some
situations by demonstrating that counsel’s actions deprived the defendant of an
important procedural opportunity.‖). A determination of prejudice in this appeal
should not be attempted in the absence of a record, which could be provided in a
post-conviction writ of habeas corpus. Based on the seriousness of the charged
offenses and the length of the sentences imposed, I conclude the more cautious
and correct approach would be to overrule Appellant’s issue on the basis of an
inadequate record and thereby a failure to establish deficient representation.
Based on this rationale, I join the judgments affirming the trial court’s judgments.
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LEE GABRIEL
JUSTICE
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 30, 2013
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