CHRISTOPHER CARPENTER v. THE STATE OF TEXAS--Appeal from 117th District Court of Nueces County

    NUMBER 13-01-816-CR

    COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

CHRISTOPHER CARPENTER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 117th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Ya ez and Castillo

Opinion by Justice Ya ez

Following a jury trial, appellant, Christopher Carpenter, was found guilty of one count of indecency with a child[1] and two counts of sexual assault of a child.[2] The jury assessed punishment at two years in the Texas Department of Criminal JusticeB Institutional Division. In a single issue, appellant argues he was denied effective assistance of counsel because of his counsel=s failure to object to the admission of certain evidence. We affirm.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here. See Tex. R. App. P. 47.1.

Standard of Review

We review ineffective assistance claims under the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and Bone v. State, No. 0473-00, 2002 Tex. Crim. App. LEXIS 129, at *8 (Tex. Crim. App. June 19, 2002). That test requires the appellant to show that: (1) counsel's performance fell below an objective standard of reasonableness under prevailing norms; and (2) there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Bone, 2002 Tex. Crim. App. LEXIS 129, at *8. A Areasonable probability@ is one sufficient to undermine confidence in the outcome. Id. We examine the totality of the representation, as reflected in the record, in making this determination. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellate courts apply a strong presumption that counsel's actions fell within the range of reasonable professional assistance. Bone, 2002 Tex. Crim. App. LEXIS 129, at *9. The appellant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Id. at *8.

As the court of criminal appeals recently noted, "[u]nder normal circumstances, the record on direct appeal will not be sufficient to show that counsel=s representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel=s conduct was reasonable and professional.@ Id. at *9-10. A>[I]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.=@ Id. at *10 (quoting Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999) (to defeat the presumption of reasonable professional assistance, Aany allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness@)).

Appellant contends he was denied effective assistance of counsel because of his counsel=s failure to object to certain alleged hearsay testimony, including: (1) testimony by the victim=s mother concerning what her son told her about appellant=s conduct and what the victim told her about appellant=s conduct; and (2) testimony by Dr. Norma Ramirez, a school administrator, concerning what the victim told her regarding the alleged incidents.

Appellant filed a motion for new trial, alleging he was entitled to a new trial because of Anewly discovered evidence@ and in the interest of justice. The motion does not allege appellant was denied effective assistance of counsel.

On December 21, 2001, a hearing was held on appellant=s motion. The evidence and arguments at the hearing were limited entirely to the grounds urged in the motion, i.e., a new trial should be granted because of Anewly discovered evidence@ and in the interest of justice. The Anewly discovered evidence@ was the identity of a student, whose statement and testimony alleged that in 1999, the victim had falsely accused him of sticking his hand down her blouse at school. At the hearing, the Anew@ witness testified, as well as appellant=s trial counsel. The State presented testimony from a school official regarding the witness=s testimony. Appellant=s trial counsel testified regarding how and when he learned of the witness=s identity and the nature of his testimony. No argument was raised and no testimony was presented regarding any allegation of ineffective assistance or trial counsel=s failure to object to alleged hearsay testimony at trial.

The record before us does not reveal trial counsel=s reasons for not objecting to the alleged hearsay testimony. We have reviewed the record and hold that it wholly fails to Aaffirmatively demonstrate the alleged ineffectiveness.@ Id. at *10 (quoting Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). AGiven the presumption of effectiveness and the great deference we give to decisions made by defense counsel, we see nothing in the present record that would compel us to find counsel ineffective.@ Id. (quoting Johnson v. State, 68 S.W.3d 644, 655 (Tex. Crim. App. 2002)).

We overrule appellant=s sole point of error and AFFIRM the judgment.

LINDA REYNA YA EZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

29th day of August, 2002.

[1]Tex. Pen. Code Ann. ' 21.11 (Vernon Supp. 2002).

[2] Tex. Pen. Code Ann. ' 22.011 (Vernon Supp. 2002).