Jason Thompson, A/K/A Jason Brent Thompson v. State

• Court: Court of Appeals of Texas
• Decided: June 30, 2005
• Docket: 13-03-00256-CR
• Status: Published

Opinion

                             NUMBER 13-03-00256-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

JASON THOMPSON, A/K/A JASON BRENT THOMPSON,            Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

    On appeal from the 377th District Court of Victoria County, Texas.

                       MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                         Memorandum Opinion by Justice Hinojosa

Appellant, Jason Brent Thompson, pleaded guilty on January 4, 1995, to the offense of burglary of a habitation.  After accepting appellant=s plea, the trial court deferred the adjudication of guilt and placed him on community supervision for a term of seven years.  The trial court later extended appellant=s community supervision for an additional three years.

On November 22, 2002, the State filed a motion to adjudicate guilt, alleging that appellant had violated various conditions of his community supervision order, including  (1) the commission of the criminal offense of Apossession of a controlled substance@, (2) the failure to report, (3) the failure to pay various costs, and (4) the failure to abide by curfew times.  Appellant pleaded Anot true@ to all of the allegations in the State=s motion to adjudicate guilt.  The trial court (1) held an evidentiary hearing on the motion, (2) found that appellant had violated numerous conditions of his community supervision order, (3) adjudicated him guilty of the offense of burglary of a habitation, and (4) assessed his punishment at twenty-five years imprisonment.  The trial court has certified that this  Ais a plea-bargain case, but the trial court has given permission to appeal, and the defendant has the right of appeal.@  See Tex. R. App. P. 25.2 (a)(2).  In a single issue, appellant contends that his court-appointed counsel did not provide him with effective assistance of counsel at the adjudication hearing.  We affirm.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it.  Tex. R. App. P.  47.4.

 To prevail on a claim of ineffective assistance of counsel, appellant must establish that (1) counsel=s performance failed to constitute reasonably effective assistance by falling below an objective standard of reasonableness under the prevailing professional norms; and (2) there is a reasonable probability that, but for counsel=s deficient performance, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  The burden of proving ineffective assistance of counsel is on the appellant and is one which requires proof by a preponderance of the evidence.  Stafford v. State, 813 S.W.2d 503, 506 n.1 (Tex. Crim. App. 1991); Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985).  An allegation of ineffective assistance of counsel will be sustained only if it is firmly founded in the record and if the record affirmatively demonstrates counsel=s alleged ineffectiveness.  McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996); Stafford, 813 S.W.2d at 506 n.1; Ex parte McWilliams, 634 S.W.2d 815, 819 (Tex. Crim. App. 1980).  In determining the validity of a claim of ineffective assistance of counsel, the reviewing court must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.  Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).  Accordingly, there is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  However, the presumption may be rebutted by evidence of counsel=s reasoning or lack thereof.  See Jackson, 877 S.W.2d at 771.

Generally, the record on direct appeal is "inadequate to develop an ineffective assistance claim" because "the very ineffectiveness claimed may prevent the record from containing the information necessary to substantiate such a claim."  Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997).  When the record is silent as to defense counsel's subjective motivations, appellate courts employ the presumption discussed above, and presume that the challenged actions or inactions were sound trial strategy.  Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).  This general rule may be defeated when a motion for new trial is filed, and a hearing is held on the issue of the alleged ineffective assistance of counsel.  See Robinson v. State, 16 S.W.3d 808, 810 (Tex. Crim. App. 2000) (discussing post-conviction writ proceeding as preferred method for establishing facts underlying ineffective assistance claim). 

The record reflects that on February 26, 2003, appellant informed the trial court that he wanted to replace his court-appointed attorney and retain new counsel to represent him at the adjudication hearing.  The trial court then set the adjudication hearing for March 18, 2003.  When his case was called on March 18, appellant (1) informed the court that he had not employed new counsel, (2) asked that new counsel be appointed to represent him, and (3) requested a continuance.  The trial court denied appellant=s requests and proceeded with the adjudication hearing.

In his motion for new trial, appellant asserted the trial court erred by refusing to appoint new counsel to represent him at the adjudication hearing and refusing to grant him a continuance so that he and his counsel could confer and prepare an adequate defense.  Appellant did not call his court-appointed counsel to testify at the motion for new trial hearing.

Appellant now contends that he received ineffective assistance of counsel from his court-appointed counsel because counsel, in anticipation of being replaced by new counsel, failed to confer with him regarding his case and otherwise failed to prepare for his defense.  Appellant asserts that such lack of preparedness is evidenced by counsel=s introduction of a videotape of appellant=s arrest into evidence.  Appellant contends the videotape was self-incriminating, and counsel should have been aware that playback of the videotape at the hearing and admitting the videotape into evidence would be prejudicial to his case. 

However, because counsel did not testify at the motion for new trial hearing we have nothing before us from which to determine why he introduced the videotape of appellant=s arrest into evidence.  In the absence of evidence of counsel=s reasons for the challenged conduct, the appellate court will assume a strategic motivation and will not conclude that the conduct was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it.  Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); see Aldrich v. State, 104 S.W.3d 890, 896 (Tex. Crim. App. 2003) (AAppellate courts can rarely decide the issue of unreasonable performance because the appellate record rarely speaks to the strategic reasons that counsel may have considered.@).

The record does not affirmatively show that counsel had any expectation of being relieved as appellant=s counsel at the adjudication hearing.  Further, the record does not affirmatively show that counsel abandoned his responsibility to effectively represent appellant at the adjudication hearing.  Consequently, appellant=s claim that he received ineffective assistance of counsel is not firmly founded in the record, and the record does not affirmatively demonstrate the alleged ineffectiveness.

Accordingly, we hold that appellant has not sustained his burden of proving his ineffective assistance of counsel claim by a preponderance of the evidence.^[1]  Appellant=s sole issue is overruled.

We affirm the trial court=s judgment.

FEDERICO G. HINOJOSA

Justice

Do not publish.  See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 30th day of June, 2005.

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^[1] Appellant is not foreclosed from presenting his claim via collateral attack by virtue of an application for post-conviction writ of habeas corpus.  Ex parte Nailor, 149 S.W.3d 125, 130-31 (Tex. Crim. App. 2004).