Nicholas Bradford Jones v. The State of Texas--Appeal from 219th District Court of Collin County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

NICHOLAS BRADFORD JONES, )

) No. 08-02-00429-CR

Appellant, )

) Appeal from the

v. )

) 219th District Court

THE STATE OF TEXAS, )

) of Collin County, Texas

Appellee. )

) (TC# 219-81862-01)

)

O P I N I O N

In a single issue, appellant complains his trial counsel was ineffective for failing to object under Rules of Evidence 401, 402, and 403 to the victim character and impact testimony of two witnesses. Because the record is silent to defense counsel=s reasoning or trial strategy, we will affirm.

I

The appellant pled guilty to aggravated kidnaping and was sentenced by the jury to 99 years= confinement plus a fine of $10,000. In this and two companion cases,[1] during the punishment phase, the complainant and a close friend of her=s, were called to testify. The complainant testified that she was kidnaped, threatened, brutalized, repeatedly raped, and left her in an open field wrapped in a bubble wrap, like a mummy. She was covered with sticks, leaves, and some kind of netting. Appellant and his companion threatened complaint=s life and that of her children repeatedly. After appellant left, the complainant found something sharp behind her hand, cut herself free, and was able to escape. She testified that the ordeal affected her life in every way, but mostly affected her children. She testified to terrible emotional problems, psychiatric counseling, medication, gynecological care, distorted body images, insecurities, as well as trouble with relationships, and intimacy. She stated her children did not understand why she would not let them go outside alone, never go out at night, and that they were too young to explain to them the situation. She lost her job because of the emotional impact of the crime and her inability to concentrate; in turn she lost her health insurance. Trial defense counsel did not cross-examine or make any objections to the testimony.

A friend of complainant also testified. The friend worked with complainant as a waitress and flight attendant. Prior to the crime, the complainant was described as a laughing, positive person. Afterward, she was like a deer in the headlights, like frozen, not there. Once again, trial defense counsel did not cross-examine or object.

II

In his sole issue, appellant complains his counsel was ineffective because he did not object to the victim impact evidence. To show that trial counsel was ineffective, appellant must demonstrate that: (1) trial counsel=s performance was deficient because it fell below an objective standard of reasonableness; and (2) a probability existed, sufficient to undermine confidence in the outcome, that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Strickland states that judicial scrutiny of counsel=s performance must be highly deferential and that a reviewing court A[m]ust indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable professional assistance . . . .@ Strickland 466 U.S. at 689. This case typifies an ineffective counsel challenge because Athe record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel=s actions.@ Mallet v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). The record is silent as to why appellant=s trial counsel did not object to any of the two witnesses= testimony. It may well have been counsel=s strategy to focus on appellant=s much lengthier positive character testimony, rather than object and call further attention to the results of this horrific crime. Trial counsel should ordinarily be afforded an opportunity to explain his actions before being found ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Based upon this record, we cannot conclude that appellant has established that trial counsel=s performance fell below an objective standard of reasonableness, in order to satisfied the first prong of Strickland. Id. Appellant=s sole issued is overruled.

The judgment is affirmed.

DON WITTIG, Senior Justice

August 21, 2003

Before Panel No. 5

Barajas, C.J., Larsen, and Wittig, JJ.

(Wittig, J., sitting by assignment)

(Do Not Publish)

[1] The two related cases are cause numbers: 08-02-00430-CR and 08-02-00431-CR.