Robert Earl Buckley v. State

Opinion

AFFIRMED; Opinion Filed November 4, 2015.

In The O!ourt of AppeaLs 1J1ift}f 1!listrid of wexas at 1!lallas No. 05-14-00296-CR

ROBERT EARL BUCKLEY, Appellant v. THE STATE OF TEXAS, Appellee

On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F-1361612-M

MEMORANDUM OPINION Before Chief Justice Wright, Justice Fillmore, and Justice Stoddart Opinion by Justice Stoddart A jury convicted Robert Buckley of possession of a controlled substance in an amount

less than one gram and assessed his punishment at one-year incarceration. In a single issue,

Buckley argues he received ineffective assistance of counsel because his counsel did not file a

motion to suppress evidence. We affirm the trial court's judgment.

To successfully assert an ineffective assistance of counsel challenge on direct appeal, an

appellant must show that (1) counsel's representation fell below an objective standard of

reasonableness and (2) the deficient performance prejudiced him; that is, but for the deficiency,

there is a reasonable probability that the result of the proceeding would have been different.

Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). An ineffective assistance of

counsel claim must be "firmly founded in the record," and the record rrfU!Cf!f~i1NY COURT OF APPEALS, 5th OIST

OFC 0 3 2015 LISA MATZ CLERK, 5th f)ISTR!Cl demonstrate" the claim has merit. Goodspeed v. State, 187 S. W.3d 390, 392 {Tex. Crim. App.

2005). We commonly assume a strategic motive if any can be imagined and find counsel's

performance deficient only if the conduct was so outrageous that no competent attorney would

have engaged in it. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).

The court of criminal appeals has made clear that, in most cases, a silent record which

provides no explanation for counsel's actions will not overcome the strong presumption of

reasonable assistance. Rylander, 101 S.W.3d at 110. Further, counsel should ordinarily be

accorded the opportunity to explain his actions before being denounced as ineffective. Menefield

v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012). Because the reasonableness of trial

counsel's choices often involve facts that do not appear in the appellate record, an application for

writ of habeas corpus is 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).

Buckley's counsel filed an omnibus pre-trial motion that included a request for a hearing

outside the jury's presence before the State offered any evidence seized or recovered during the

investigation of the case, and also requested the trial court suppress any evidence obtained by

unconstitutional means. When the trial court considered Buckley's omnibus motion during a

pre-trial hearing, the court asked Buckley's counsel whether he was making a motion to

suppress. Counsel replied he was not seeking a hearing on a motion to suppress and asked the

trial court not to admit evidence obtained in violation of the constitution.

Although Buckley filed a motion for new trial, he did not raise the issue of ineffective

assistance of counsel, and no evidentiary hearing was conducted on the issue. Thus, the record

is silent about counsel's reasons for his actions.

Because the record is silent, we do not know why Buckley's counsel declined to seek a

hearing on his motion to suppress evidence. Therefore, based on this silent record, we conclude

-2- Buckley has not met his burden of overcoming the strong presumption of reasonable assistance

of counsel. We overrule Buckley's sole issue.

We affirm the trial court's judgment.

/Craig Stoddart/ CRAIG STODDART JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 140296F.U05

-3-

ROBERT EARL BUCKLEY, Appellant On Appeal from the I 94th Judicial District Court, Dallas County, Texas No. 05-14-00296-CR V. Trial Court Cause No. F-1361612-M. Opinion delivered by Justice Stoddart. THE STATE OF TEXAS, Appellee Chief Justice Wright and Justice Fillmore participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 4th day ofNovember, 2015.

-4- (!lnurt nf App.eul.a ~r ~E$POsJ: 41o llitftq flliatrid nf ID.exu.a ut fllttlltta Q- If! I( ·<;" ~ :;:::;;,:::::::.- George L. Allen Sr. Courts Building z\;t." ~-­ 600 Commerce Street, Suite 200 ~i,ll!l;lrH~~·rt:· ;:I -~··· - P I H I E V BOWES

-~-~~ g~o6~ss274 $ ~~~~1~ Dallas, Texas 75202 5

..u;;...~~~~~~~J~t....:o.,~:..:.:.:r: MAILED FROM ZIP CODE 75201

CASE: 05-14-00296-CR ROBERT EARL BUCKLEY

RETURN TO SENDER ..., =-

NOI IN. DALW COUNTY JA\l ..... 7 7 ~a _ ;;; '1