Crystal Yvette Roberson v. The State of Texas--Appeal from 262nd District Court of Harris County

 NUMBER 13-05-00242-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

CRYSTAL YVETTE ROBERSON, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 262nd District Court of Harris County, Texas.

 MEMORANDUM OPINION[1]

 Before Justices Hinojosa, Rodriguez, and Garza

Memorandum Opinion by Justice Hinojosa

A jury found appellant, Crystal Yvette Roberson, guilty of the offense of forgery, and the trial court assessed her punishment at twelve years= imprisonment. In a single point of error, appellant complains that she received ineffective assistance of trial counsel. We affirm.

A. Standard of Review

The standard of review for ineffective assistance of counsel claims is well established. Appellant must show that (1) counsel's performance was deficient, and (2) the deficiency of counsel's performance caused prejudice to appellant. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Cardenas v. State, 30 S.W.3d 384, 391 (Tex. Crim. App. 2000). The deficiency must be to the point that counsel failed to function as counsel. Yates v. State, 917 S.W.2d 915, 920 (Tex. App.BCorpus Christi 1996, pet. ref=d). Such claims must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

B. Analysis

We begin our analysis with a rebuttable presumption that counsel is better positioned than the appellate court to judge the pragmatism of the particular case and that counsel made all significant decisions in the exercise of reasonable professional judgment. Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992). The presumption may be rebutted by evidence of counsel's reasoning or lack thereof. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The most effective way to demonstrate ineffective assistance of counsel is by presenting evidence at a hearing on a motion for new trial. See generally McCain v. State, 995 S.W.2d 229, 245 n.9 (Tex. App.BHouston [14th Dist.] 1999, pet. denied).

Appellant contends she was denied effective assistance of counsel during trial because counsel was prevented from presenting a meaningful defense. During trial, counsel attempted to elicit information regarding identity fraud from a witness. The State objected to each attempt. The judge sustained each objection and finally limited the line of questioning concerning identity theft.

Appellant asserts that counsel failed to present any meaningful information regarding identity theft, and that identity theft was the sole issue of her defense. However, the record shows that counsel presented evidence that appellant had lost her driver=s license several days prior to the event in question. Thus, counsel was not precluded from arguing identity theft during closing argument. Nevertheless, the record shows that counsel chose to argue misidentification instead of identity theft.

The record shows that appellant did not claim in her motion for new trial that she received ineffective assistance of counsel during trial. Thus, the record contains no evidence of counsel's reasoning or lack thereof. Consequently, appellant=s allegations of ineffectiveness are not firmly founded in the record, and the record does not affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Accordingly, we hold that appellant has not sustained the burden of proving her ineffective assistance claim by a preponderance of the evidence.[2] Appellant's sole point of error is overruled.

We affirm the judgment of the trial court.

FEDERICO G. HINOJOSA

Justice

Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this the 8th day of June, 2006.

[1] Because the issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and facts in this opinion except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

[2] This holding does not prevent appellant from raising this claim by an application for post-conviction writ of habeas corpus. Ex parte Nailor, 149 S.W.3d 125, 130-31 (Tex. Crim. App. 2004); Ex parte Varelas, 45 S.W.3d 627, 629 (Tex. Crim. App. 2001).