Jackson v. State

BAIRD, Judge,

concurring.

This case stands for a very simple proposition: As a general rule, one should not raise an issue of ineffective assistance of counsel on direct appeal.1 This is so because a trial record is generally insufficient to address claims of ineffective assistance of counsel in light of the “strong presumption that [trial] counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).

This case proves the rule. As the majority correctly states:

The record in the instant case is ... silent as to why appellant’s trial counsel failed to challenge venire member Supin-ski. We could speculate as to why appellant’s trial counsel decided not to challenge or strike Supinski ... but there is no need to do so_ To hold trial counsel’s decision not to strike or challenge venire member Supinski in the instant case as ineffective assistance would also call for speculation. The record in the instant case lends no support for such holding.
... Due to the lack of evidence in the record concerning trial counsel’s reasons for not challenging or striking venire member Supinski, we are unable to conclude that appellant’s trial counsel’s performance was deficient....

Majority opinion, 877 S.W.2d at 771-772.2

A trial record is directed to the issues of guilt/innocence and punishment. And we review that record with an eye toward the errors allegedly committed in relation to those issues. However, in order to effectively argue an issue of ineffective assistance of counsel, a record focused on the conduct of trial or appellate counsel should be developed. Such a record is generally best developed in the context of a hearing held in relation to an application for writ of habeas corpus.3 For example, in Ex parte Menchaca, 854 S.W.2d 128, 130 (Tex.Cr.App.1993), the habeas judge conducted a hearing and *773entered findings of fact and conclusions of law on the claim of ineffective assistance of counsel. In such instances, we can better gauge the effectiveness of counsel’s representation by reviewing the record from the writ hearing as well as the habeas judge’s findings and conclusions, all of which are directed to the representation issue.4 Indeed, in the past, certain members of this Court have specifically called for this type of hearing rather than making such determinations from “a cold record.” Craig v. State, 825 S.W.2d 128 (Tex.Cr.App.1992) (Benavides, J., dissenting, joined by McCormick, P.J., and White, J.); and, Vasquez v. State, 830 S.W.2d 948 (Tex.Cr.App.1992) (Benavides, J., dissenting, joined by McCormick, P.J., and White, J.).

In the instant case, because the record is insufficient to overcome the strong presumption of Strickland that trial counsel’s conduct falls within the wide range of reasonable professional assistance, I am compelled to join the majority opinion.5

OVERSTREET, J., joins this opinion.

. As with every general rule, there are exceptions. See, e.g., Vasquez v. State, 830 S.W.2d 948 (Tex.Cr.App.1992).

. Today, the majority correctly recognizes that much of this Court’s opinion in Delrio v. State, 840 S.W.2d 443 (Tex.Cr.App.1992), was speculation, immaterial to the ultimate holding in that case. Majority opinion, 877 S.W.2d at 771-772. While I continue to adhere to my dissent in Delrio, Id. 840 S.W.2d at 447, I also adhere to the doctrine of state decisis. Ex parte Porter, 827 S.W.2d 324, 327 (Tex.Cr.App.1992) (Baird, J., dissenting).

. One may also develop such a record at the hearing on a motion for new trial. Reyes v. State, 849 S.W.2d 812 (Tex.Cr.App.1993). However, in most cases this will be impractical because the time constraints for filing a motion for new trial, Tex.R.App.P. 31, do not provide for adequate investigation. Further, the trial record will generally not be transcribed and, therefore, unavailable for preparation for and use at the motion for new trial hearing.

. In most instances the pertinent portions of the trial record will be introduced at the writ hearing.

. I pause to note that neither the State’s brief nor the brief of the State Prosecuting Attorney comply with Tex.R.App.P. 74(a). Additionally, the State Prosecuting Attorney filed a document in this case entitled "State’s Petition for Discretionary Review and Brief in Support Thereof." Our rules do not contemplate or authorize such a document. See, Tex.R.App.P. 202(d).