AFFIRM; and Opinion Filed July 30, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00832-CR
REID CARLTON RENICKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1
Collin County, Texas
Trial Court Cause No. 001-86948-2011
MEMORANDUM OPINION
Before Justices FitzGerald, Francis, and Lewis
Opinion by Justice Lewis
A jury found appellant Reid Carlton Renicker guilty of driving while intoxicated. The
trial court assessed his punishment at a $900 fine and 120 days’ confinement, the latter being
suspended in favor of fifteen months of community supervision. In a single appellate issue,
Renicker contends he received ineffective assistance of counsel because his attorney failed to
present a case during the punishment phase, failed to object to the introduction of improper
character evidence during trial, and failed to file a motion to suppress—or object to—evidence of
extraneous bad acts. Because the issues in this appeal involve the application of well-settled
principles of law, we issue this memorandum opinion. See TEX. R. APP. P. 47.4. We affirm.
The evidence at issue here was offered through the testimony of Plano police officer John
Britton. Britton was driving an unmarked car and working burglary surveillance at
approximately two thirty in the morning when the vehicle driven by Renicker cut in front of
Britton and almost hit his car. Renicker turned on tail-light flashers, and Britton noticed a
firefighter emblem on Renicker’s license plate. Britton followed Renicker on city streets and
observed him accelerate to approximately seventy miles per hour and then—after cutting in front
of Britton again—slow almost to a stop, flick a lit cigarette so that it bounced off the hood of
Britton’s car, and drive off. (Britton testified he thought this conduct was “strange” and “very
bad behavior” given that Renicker was a firefighter and the area was experiencing a drought.)
Following the cigarette incident, Britton pulled up alongside Renicker, and Renicker stopped his
vehicle in the road. He looked over at Britton, yelled “I am a f______ fireman,” flipped Britton
off, and took off again. Renicker then made a u-turn and stopped where another officer—whom
Britton had called for back-up—was parked with his car’s lights on; Renicker told the officer he
was being followed. The second officer performed field sobriety tests, and Renicker was
arrested.
Renicker contends he received ineffective assistance of counsel at trial because his
attorney did not object to Britton’s characterization of Renicker’s behavior with the cigarette as
“strange” and “very bad behavior.” Renicker argues that testimony amounted to inadmissible
character evidence. He also complains that his counsel did not move to suppress, or at least
object to, the evidence of Renicker’s offensive behavior toward Britton, which he contends was
irrelevant or, if not, was unfairly prejudicial when compared to any relevance it had to the
charged conduct. Finally, Renicker also complains that his attorney failed to present a case
during the punishment phase, stating only:
This is the defendant’s first DWI. There is no other allegation that he has ever
been arrested before. We would ask for a $300 fine, six months’ probation, 24
hours community service and standard conditions.
Thank you, Your Honor.
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We examine ineffective assistance of counsel claims under the standard set out in
Strickland v. Washington, 466 U.S. 668 (1984) and adopted by Texas in Hernandez v. State, 726
S.W.2d 53, 56–57 (Tex. Crim. App. 1986). Renicker’s burden is to show by a preponderance of
the evidence that (a) trial counsel’s performance was deficient in that it fell below the prevailing
professional norms, and (b) but for the deficiency, there is a reasonable probability the result of
the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999). We examine the totality of counsel’s representation to determine whether
appellant received effective assistance, but we do not judge counsel’s strategic decisions in
hindsight; rather, we strongly presume counsel’s competence. Id. Any allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. Id.
In this case, Renicker filed a motion for new trial alleging, among a number of grounds,
that he received ineffective assistance because his attorney failed to file a motion to suppress.
The motion contained no argument on the point, and there is no record of a hearing at which
Renicker’s trial counsel was afforded the opportunity to explain his actions or trial strategy.
Therefore, as was the case in Thompson, our record provides no discussion of trial counsel’s
purported errors. It contains no discernible explanation of the motivation behind his decision not
to file a motion to suppress, his decision not to object to any particular evidence, or his strategy
in presenting the punishment phase of the trial. Because the record is silent regarding any
explanation for counsel’s actions, appellant has failed to meet his burden to overcome the strong
presumption of reasonable assistance. See Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim.
App. 2003) (“The record in this case is insufficient to support the conclusion [that appellant
received ineffective assistance of counsel] because appellant did not develop a record in the trial
court for the purpose of establishing this claim.”); Jackson v. State, 877 S.W.2d 768, 771 (Tex.
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Crim. App. 1994) (appellate court is not required to indulge in speculation concerning counsel’s
decision-making processes or to imagine reasons why counsel acted or failed to act in particular
manner). 1
On the record before us, we cannot conclude Renicker has established that his trial
counsel’s performance fell below an objective standard of reasonableness. Thus, he has failed to
satisfy the first prong of Strickland and has not shown his trial counsel’s assistance was
ineffective. We overrule his single issue.
We affirm the trial court’s judgment.
/David Lewis/
DAVID LEWIS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
120832F.U05
1
Because the reasonableness of trial counsel’s choices often involves facts that do not appear in the appellate record, an application for
writ of habeas corpus is often the more appropriate vehicle to raise ineffective assistance of counsel claims. See Mitchell v. State, 68 S.W.3d 640,
642 (Tex. Crim. App. 2002).
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
REID CARLTON RENICKER, Appellant On Appeal from the County Court at Law
No. 1, Collin County, Texas
No. 05-12-00832-CR V. Trial Court Cause No. 001-86948-2011.
Opinion delivered by Justice Lewis.
THE STATE OF TEXAS, Appellee Justices FitzGerald and Francis participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 30th day of July, 2013.
/David Lewis/
DAVID LEWIS
JUSTICE
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