Carrio, Norman Edward v. The State of Texas--Appeal from 185th District Court of Harris County

Affirmedand Memorandum Opinion filed January 20, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00294-CR

NO. 14-04-00295-CR

____________

NORMAN EDWARD CARRIO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause Nos. 356,220 & 356,221

O P I N I O N

This is an appeal from the denial of appellant=s post-conviction motion for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. Appellant brings a single issue in which he contends he received ineffective assistance of counsel in his post-conviction attempt to obtain DNA testing.

Background

Appellant entered pleas of not guilty to the offenses of murder and attempted murder. On April 27, 1983, he was convicted and a jury assessed punishment at confinement for sixty years and a $10,000 fine on the murder case and confinement for twenty years and a $5000 fine on the attempted murder case. Appellant=s convictions were affirmed on July 12, 1984. Carrio v. State, 14-83-334-CR & 14-83-355-CR (Tex. App.CHouston [14th Dist.] July 12, 1984, pet. ref=d). On June 3, 2002, appellant requested appointment of counsel to assist in requesting DNA testing. On June 10, 2003, appellant=s appointed counsel filed a request for DNA testing. The State presented evidence that certain forensic evidence was destroyed prior to appellant=s request, and the crime lab did not receive certain forensic evidence. The trial court found appellant failed to meet the requirements of article 64.03(a) of the Texas Code of Criminal Procedure and denied appellant=s request.

Appellant filed a notice of appeal in this court challenging the trial court=s ruling. Appellant=s appointed counsel filed a brief in which she concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel=s brief was delivered to appellant. Appellant was advised of the right to examine the appellate record and file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). Appellant filed a pro se response in which he contends he received ineffective assistance of counsel in his post-conviction attempt to obtain DNA testing.

Ineffective Assistance of Counsel

Appellant contends his counsel was ineffective because she failed to conduct an independent investigation to determine if forensic evidence existed and had been preserved. The Court of Criminal Appeals has not decided whether an appellant may raise a claim of ineffective assistance arising from a hearing under chapter 64 of the Code of Criminal Procedure. Bell v. State, 90 S.W.3d 301, 307 (Tex. Crim. App. 2002). Assuming such a claim can be raised, to prevail on his claims appellant must first prove, by a preponderance of the evidence, that his counsel=s representation fell below the objective standard of professional norms. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

In assessing appellant=s claims, there is a strong presumption that counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden to rebut this presumption by presenting evidence illustrating why counsel did what he or she did. See id. An appellant cannot meet this burden when counsel=s actions may have been based on tactical decisions and the record does not specifically focus on the reasons for counsel=s conduct. See Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002). Without a motion for new trial based on ineffective assistance, the record is silent as to why counsel acted as she did. In the face of a silent record, this court will not speculate about why counsel did or did not take certain actions. See Jackson, 877 S.W.2d at 771. In the absence of any evidence to the contrary, we cannot conclude the performance of appellant=s counsel was deficient. See id. Appellant=s sole issue is overruled.

The judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Opinion filed January 20, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.

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