Conley, Robert v. The State of Texas--Appeal from 339th District Court of Harris County

Affirmed and Memorandum Opinion filed May 22, 2003

Affirmedand Memorandum Opinion filed May 22, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00543-CR

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ROBERT CONLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 903,123

M E M O R A N D U M O P I N I O N

Appellant, Robert Conley, was convicted by a jury of burglary of a habitation. Appellant pled true to two enhancement paragraphs, and the jury assessed his punishment at confinement in the state penitentiary for a term of thirty years. In two points of error, appellant contends he received ineffective assistance of counsel. We affirm.

On August 20, 2001, two witnesses observed a black male wearing black pants, a black t-shirt with yellow on the front, and a black baseball cap, step onto a neighbor=s porch and break out a window. He then entered the house and the witnesses called the police. When the police arrived, they surrounded and then entered the house. The police found no one inside the house, but when they began searching the neighboring woods, they found appellant, meeting the above description, lying on the ground and attempting to hide. Within twenty-five feet of the appellant were some items that had been taken from the house. Although the witnesses were not able to identify appellant by his face, they were able to identify him by his clothing and general appearance shortly after his arrest. Because of the suggestive nature of the one-on-one show-up, the witnesses were not permitted to testify that appellant was the person they saw entering the house. However, they were permitted to testify that the appellant was the person they saw in police custody, shortly after the burglary, meeting the description of the person they had earlier seen entering the house. On appeal, appellant contends he received ineffective assistance of counsel due to his counsel=s failure to object to the in-court identification made by the two witnesses.

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 is 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 there is a reasonable probability 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 presume 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; 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.

The record contains a pro se motion for new trial filed with the clerk on June 10, 2002. At the time the motion was filed, appellant had appointed counsel. Appellant is not entitled to hybrid representation. Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. 1981); McKinny v. State, 76 S.W.3d 463, 478 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d).

By failing to properly file a motion for new trial to determine trial counsel=s reasons for not challenging the in-court identifications, appellant has failed to overcome the presumption that such action was part of a sound trial strategy. The record provides no discernible explanation of the motivation behind counsel=s failure to object, but trial counsel=s actions could have been of strategic design. Thompson, 9 S.W.3d at 812. In most cases, a silent record that provides no explanation for counsel=s action will not overcome the strong presumption of reasonably effective assistance. See id. at 813B14. Moreover, appellant has not shown there is a reasonable probability that the result of the trial would have been different if appellant=s counsel had objected to the in-court identification.

Accordingly, the judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed May 22, 2003.

Panel consists of Justices Hudson, Edelman, and Draughn.*

Do Not Publish C Tex. R. App. P. 47.2(b).

* Senior Justice Joe L. Draughn sitting by assignment.