Marantz Brandon Payne v. The State of Texas--Appeal from 232nd District Court of Harris County

MEMORANDUM OPINION
No. 04-02-00514-CR
Marantz Brandon PAYNE,
Appellant
v.
The STATE of Texas,
Appellee
From the 232nd Judicial District Court, Harris County, Texas
Trial Court No. 879180
Honorable Mary Lou Keel, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: July 23, 2003

AFFIRMED

A jury found Marantz Brandon Payne guilty of aggravated robbery and assessed punishment at twenty years confinement in the Texas Department of Criminal Justice - Institutional Division and a $2,500 fine. The trial court rendered judgment on the verdict. On appeal, Payne argues he received ineffective assistance of counsel because his trial attorney did not obtain a transcript of Payne's previous trial (which resulted in a mistrial) and thus was unable to effectively impeach the State's witnesses. Because the record does not establish the alleged ineffectiveness, we affirm.

To establish a claim of ineffective assistance of counsel, a defendant must show (1) his trial counsel's performance was deficient and (2) the deficient performance prejudiced him to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1091 (1989); Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986). To show deficient performance, appellant must show counsel's performance fell below an objective standard of reasonableness and rebut the presumption that counsel's trial decisions are based on sound strategy. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The alleged ineffectiveness must be affirmatively demonstrated by the record. Id. at 813. To show prejudice, the "appellant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 812.

Nothing in the record suggests, much less establishes, that Payne's attorney did not obtain a transcript of the first trial. The record reflects only that he did not use a transcript in his attempts to impeach. Further, the transcript of the first trial is not part of the appellate record. Thus Payne cannot show (1) the State's witnesses could have been impeached by their prior testimony, (2) the impeachment would have been material, or (3) the failure to effectively impeach undermines confidence in the outcome of the trial. Because Payne's claim of ineffectiveness is not supported by the record, we overrule his point of error and affirm the trial court's judgment. (1)

Sarah B. Duncan, Justice

Do not publish

1. Because the record on direct appeal is usually insufficiently developed to establish a claim of ineffective assistance of counsel, an application for writ of habeas corpus is generally the appropriate vehicle to raise such a claim. See Rylander v. State, 101 S.W.3d 107, 110-111 (Tex. Crim. App. 2003).