Bookman, Leon Eugene v. The State of Texas--Appeal from 10th District Court of Galveston County

Affirmedand Opinion filed September 26, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01267-CR

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LEON EUGENE BOOKMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 01CR0334

O P I N I O N

Appellant, Leon Eugene Bookman, was convicted by a jury of the offense of possession of cocaine weighing more than four grams and less than two hundred grams and sentenced to a term of fifty years imprisonment. In a single point of error, appellant complains he was denied effective assistance of counsel. We affirm.

On the night of January 11, 2001, pursuant to a search warrant, members of the Special Crimes Unit of the Texas City Police Department entered a residence shared by appellant. Appellant, seated with Josh Stubblefield near a substantial quantity of crack cocaine, sprang up and raced from the residence. Before being apprehended, appellant discarded a pager, seventy-eight dollars, and two small bags containing crack cocaine residue.

At trial, the State called another resident of the house, Costanza Crisp, to testify. Ms. Crisp, who testified earlier at Mr. Stubblefield s trial for possession of cocaine, invoked her right against self-incrimination. However, she acknowledged her earlier testimony, whereupon the State proceeded, without objection, to read that testimony into the record. Ms. Crisp s prior testimony unequivocally and affirmatively linked appellant to the recovered narcotics, and he now complains on appeal his counsel was ineffective for failing to object to its admission.

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 1977). The right to counsel necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The United States Supreme Court has established a two-prong test to determine whether counsel was ineffective. Id. First, appellant must demonstrate counsel s performance was deficient and not reasonably effective. Id. at 688B92. Second, appellant must demonstrate the deficient performance prejudiced the defense. Id. at 693. Essentially, appellant must show that his counsel s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and a reasonable probability exists that, but for his counsel s unprofessional errors, the result of the proceeding would have been different. Id.; Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997).

Judicial scrutiny of counsel s performance must be highly deferential and we are to indulge the strong presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We assume counsel s actions and decisions were reasonably professional and that they were motivated by sound trial strategy. Id. Moreover, it is the appellant s burden to rebut this presumption, by a preponderance of the evidence, through evidence illustrating why trial counsel did what he did. Id. Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998). Where the record contains no evidence of the reasoning behind trial counsel s actions, we cannot conclude counsel s performance was deficient. Jackson, 877 S.W.2d at 771; see also Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (holding that when the record provides no explanation as to the motivation behind trial counsel s actions, an appellate court should be hesitant to declare ineffective assistance of counsel). An appellate court is not required to speculate on the reasons behind trial counsel s actions when confronted with a silent record. Jackson, 877 S.W.2d at 771.

If appellant proves his counsel s representation fell below an objective standard of reasonableness, he must still affirmatively prove prejudice as a result of those acts or omissions. Strickland, 466 U.S. at 693;McFarland, 928 S.W.2d at 500. Counsel s errors, even if professionally unreasonable, do not warrant setting the conviction aside if the errors had no effect on the judgment. Strickland, 466 U.S. at 691. Appellant must prove that counsel s errors, judged by the totality of the representation, denied him a fair trial. McFarland, 928 S.W.2d at 500. If appellant fails to make the required showing of either deficient performance or prejudice, his claim fails. Id.

Appellant did not file a motion for new trial and the record contains no evidence of the reasoning behind his trial counsel s actions in failing to object to the admission of Ms. Crisp s prior testimony. Appellant fails to provide this Court with any evidence to affirmatively demonstrate the ineffectiveness of his trial counsel. Thus, appellant has not satisfied his burden on appeal to rebut the presumption that counsel s actions were reasonably professional and motivated by sound trial strategy.

Moreover, even if the record rebutted the presumption of sound trial strategy, appellant has not demonstrated that trial counsel s performance prejudiced the defense. Appellant s defensive theory was that he was only a buyer, not a distributor, of crack cocaine. Evidence from sources other than Ms. Crisp tended to refute that theory. Police found photographs of appellant in the house. Moreover, he was standing near a sizeable quantity of cocaine when police entered the house. He fled immediately upon seeing the officers, and he was found in possession of a pager, seventy-eight dollars in cash, and two small bags containing crack cocaine residue. In addition to the crack cocaine, police also found a scale, razor blade, a Pyrex cup, several baggies of marijuana, and a loaded shotgun in the house. Taken together, this evidence suggests, even without the testimony of Ms. Crisp, that appellant was trafficking in narcotics. He has not, therefore, met the second prong of the test. Because appellant produced no evidence concerning trial counsel s reasons for choosing the course he did, nor did he demonstrate prejudice to his defense, his sole point of error is overruled. McFarland, 928 S.W.2d at 500.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed September 26, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish C Tex. R. App. P. 47.3(b).