Ricky Lynn Smith v. The State of Texas--Appeal from 87th District Court of Freestone County

IN THE

TENTH COURT OF APPEALS

No. 10-98-257-CR

RICKY LYNN SMITH,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 87th District Court

Freestone County, Texas

Trial Court # 97-062-CR

CONCURRING OPINION

I concur in the judgment. I concur in the analysis of section B-2 as not being ineffective, section B-3(a) as being improper argument, B-3(b) as not being ineffective and B-3(c) as not being ineffective. I do not concur with the analysis in section B-1 as being ineffective, section B-3(b) as being ineffective, and B-3(d) as being ineffective. If there was ineffective assistance of counsel, I concur in the harm analysis of section C.

With regard to section B-1, I cannot elevate an unwritten rule on cross-examination to the level if violated, it is per se ineffective assistance of counsel. The record does not demonstrate what counsel thought the answer would be or why the question was asked. In retrospect it looks like a bad decision to have asked the question, but the record does not overcome the strong presumption of the effectiveness of counsel and that it could have been a matter of trial strategy that did not work out as planned.

Likewise, the decision not to object to counsel s argument, discussed in sections B-3(b) and (d), may have been a matter of trial strategy. This possibility is not overcome by the record before us.

With these comments, I concur in the judgment.

TOM GRAY

Justice

Concurring opinion delivered and filed March 14, 2001

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