Gary Acy v. State

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-09-00285-CR

GARY ACY, Appellant v.

THE STATE OF TEXAS, Appellee

From the 13th District Court Navarro County, Texas Trial Court No. 32375-CR

MEMORANDUM OPINION

The trial court convicted Gary Acy of retaliation and sentenced him to five years

in prison. In one issue, Acy contends that he received ineffective assistance of counsel.

We affirm.

To prove ineffective assistance, an appellant must show that: (1) counsel’s

performance was deficient; and (2) the defense was prejudiced by counsel’s deficient

performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see also Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535, 156 L.

Ed. 2d 471 (2003).

Acy contends that trial counsel rendered ineffective assistance, identifying

several instances when counsel acted or failed to act. However, Acy did not file a

motion for new trial alleging ineffective assistance. The record is silent as to any

reasons explaining trial counsel’s actions and we will not so speculate. See Thompson v.

State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Absent a record revealing trial counsel’s

strategy or motivation, Acy cannot defeat the strong presumption that trial counsel’s

actions fell within the wide range of reasonable professional assistance. Id. An

ineffective assistance claim is better raised through an application for a writ of habeas

corpus. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).

We overrule Acy’s sole issue and affirm the trial court’s judgment.

FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed May 5, 2010 Do not publish [CR25]

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