Randall, Michael Dewayne v. The State of Texas--Appeal from 262nd District Court of Harris County

Affirmed and Opinion filed  October 31, 2002.

In The

Fourteenth Court of Appeals

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NOS. 14-01-01049-CR and

14-01-01050-CR

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MICHAEL DEWAYNE RANDALL, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from 262nd District Court

Harris County, Texas

Trial Court Cause No. 884,015 and 884,014

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O P I N I O N

Michael Dewayne Randall was convicted by a jury of two counts of aggravated sexual assault of a child. Appellant contends he was denied effective assistance of counsel. We affirm.

I. Factual Background

The State presented evidence that appellant sexually assaulted C.R., his step-son. C.R. was between three and six years old when the first assault occurred. He was eight years old at the time of trial. According to testimony, one of the incidents occurred in the presence of C.R. s younger sisters, M.R. and D.R. D.R. testified, without objection, that appellant watched a sexually explicit video with her. D.R. also testified that she and her siblings watched appellant having sex with their mother. Appellant contends that his trial counsel was ineffective by allowing extraneous act testimony without objection. Appellant points to numerous places in the record where trial counsel failed to object to hearsay testimony. For example, the entire medical record of C.R., completed at the Children s Assessment Center, was introduced into evidence without objection. The court allowed the physician who wrote the medical record to read portions of it to the jury. Lastly appellant contends that improper opinion testimony was elicited from Diane Devroe, C.R. s grandmother. She testified that C.R. s stools appeared large for a child. Appellant argues that by failing to object where the State offered evidence of extraneous acts, hearsay testimony, and improper opinion evidence, his counsel was ineffective, resulting in his conviction.

  II. Standard of Review

The right to counsel at trial guaranteed by the United States and Texasconstitutions means reasonably effective counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). Claims of ineffective assistance of counsel are governed by the two-part test established in Strickland. Id.; see also Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). First, a defendant must show that counsel s performance was deficient. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). This requires a demonstration that counsel s performance fell below an objective standard of reasonableness. Id. Second, Strickland requires a defendant to affirmatively prove counsel s inadequate performance prejudiced his defense. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Prejudice is established by showing there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Id.

III. Discussion

Before we reach the issue of counsel s deficient performance, we first determine whether the record is adequate to evaluate counsel s performance. Perez v. State, 56 S.W.3d 727, 731 (Tex. App. Houston [14th Dist.] 2001, pet. ref d) citing Stone v. State, 17 S.W.3d 348, 350 (Tex. App. Corpus Christi 2000, pet. ref d). Any allegation of ineffective assistance must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d at 814 (Tex. Crim. App.1999). In most cases, if the record is silent regarding the reason for counsel s actions, the appellant will not overcome the strong presumption of reasonable assistance. Id. at 813 14. Thus, to successfully demonstrate counsel s ineffectiveness, an appellant must generally present evidence, usually through a motion for new trial or a habeas corpus proceeding, illustrating trial counsel s strategy. Id.; see also Kemp v. State, 892 S.W.2d 112, 115 (Tex. App. Houston [1st Dist.] 1994, pet. ref d).

Here, appellant did not file a motion for new trial, therefore, the record is silent regarding counsel s strategy. Under our system of justice, the criminal defendant is entitled to an opportunity to explain himself and present evidence on his behalf. His counsel should ordinarily be accorded an opportunity to explain her actions before being condemned as unprofessional and incompetent. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). We do not review counsel s trial decisions in hindsight and we strongly presume counsel s competence. Weeks v. State, 894 S.W.2d 390, 391 (Tex. App. Dallas 1994, no pet.). The record is silent as to why appellant s counsel failed to object to extraneous acts, hearsay testimony, and improper opinion testimony. Therefore, appellant has failed to rebut the presumption that trial counsel s actions resulted from a reasonable decision. Perez at 732. Because we cannot presume that counsel s performance fell below an objective standard of reasonableness, we hold that counsel s allegedly improper actions do not amount to an error sufficiently egregious to satisfy the first prong of Strickland. Id.

Even if the first prong of Strickland had been met, appellant has also failed to demonstrate that, but for trial counsel s alleged errors, there is reasonable probability that the result would have been different. C.R. testified appellant put his penis in C.R. s anus on two different occasions. D.R. testified that she observed appellant putting his penis in C.R. s anus. There was medical evidence that C.R. had penetrating trauma to his anus consistent with his being penetrated by a penis on two or more occasions. We conclude that the evidence described above is sufficient to sustain the trial court s judgment. Therefore, appellant has failed to show a reasonable probability that, but for trial counsel s errors, the jury s verdict would have been different.

Appellant s first point of error is overruled, and the judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Opinion filed October 31, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

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