Aaron Sears v. The State of Texas--Appeal from 7th District Court of Smith County
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
APPEAL FROM THE SEVENTH
JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
SMITH COUNTY, TEXASPER CURIAM
Aaron Sears ("Appellant") appeals his conviction for aggravated assault of a public servant, for which he was sentenced to imprisonment for thirty-six years. Appellant raises one issue on appeal. We affirm.
Appellant was indicted for aggravated assault of a public servant. Charles Horton ("Horton"), a volunteer fireman and Emergency Medical Technician for Dixie Volunteer Fire Department, testified that while he was fighting a house fire, he was almost run over by a car driven by Appellant. Horton testified that Appellant drove the car over the front steps and into the burning house within which he was standing. Horton further testified that he felt threatened and feared for his life.
During trial, the State of Texas (the "State") called Appellant's mother, Ida Mae Sears ("Ida Mae"). Upon a request by Appellant's trial counsel, Ida Mae was instructed not to testify with regard to Appellant's prior convictions and acts of misconduct. However, during his cross-examination of Ida Mae, Appellant's trial counsel asked, "Ms. Sears, would you consider Aaron's behavior on March the 18th of this year to be normal for Aaron or abnormal for Aaron?" Ida Mae answered, "Abnormal," and Appellant's trial counsel passed the witness. The prosecuting attorney argued to the trial court that Appellant's trial counsel had "opened the door" by way of his last question. The trial court agreed and the State was permitted to question Ida Mae regarding Appellant's prior convictions and acts of misconduct. Ultimately, Appellant was found guilty as charged and sentenced to imprisonment for thirty-six years.
Ineffective Assistance of Counsel
In his sole issue, Appellant contends that his trial counsel was ineffective because he "opened the door" allowing the State to elicit testimony of prior bad acts. The proper standard by which to gauge the adequacy of representation by counsel is articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). See also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). The test set forth in Strickland requires a two-step analysis:
Did the attorney's performance fail to constitute "reasonably effective assistance," i.e. did the defense attorney's representation fall below an objective standard of reasonableness under prevailing professional norms?
If so, was there a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings could have been different?
See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
A "reasonable probability" was defined by the Supreme Court as a "probability sufficient to undermine confidence in the outcome." Id. Counsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. See Hernandez, 726 S.W.2d at 55. The burden is on the appellant to overcome that presumption. See Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.-Texarkana 2000, pet. ref'd). The appellant must show specific acts or omissions that constitute ineffective assistance and affirmatively prove that those acts fall below the professional norm for reasonableness. Id.
After proving error, the appellant must affirmatively prove prejudice. Id. The appellant must prove that his attorney's errors, judged by the totality of the representation and not by isolated instances of error, denied him a fair trial. Id. It is not enough for the appellant to show that the errors had some conceivable effect on the outcome of the proceedings. Id. He must show that there is a reasonable probability that, but for his attorney's errors, the jury would have had a reasonable doubt about his guilt. Id.
In the case at hand, Appellant argues at length as to why his trial counsel's questioning Ida Mae about Appellant's abnormal behavior constituted an act falling below the professional norm. However, even assuming arguendo that Appellant's trial counsel's action, as noted in Appellant's brief, satisfied the first prong of the Strickland test, Appellant must still affirmatively prove prejudice. See Burruss, 20 S.W.3d at 186. It is not enough for the appellant to merely show that the errors had some conceivable effect on the outcome of the proceedings. Id.
Repeated readings of Appellant's brief uncover no argument addressing the second prong of the Strickland test. We iterate that the burden of proof as to this issue rests squarely upon Appellant. See Burruss, 20 S.W.3d at 186. As such, we will neither surmise nor devise our own conclusions absent some cogent argument on Appellant's behalf that but for his counsel's alleged unprofessional errors, there exists a reasonable probability that the result of the proceedings would have been different. Therefore, since Appellant has failed to satisfy his burden under Strickland, we hold that he was not denied his right to effective assistance of counsel. Appellant's sole issue is overruled.
Accordingly, the judgment of the trial court is affirmed.
Opinion delivered August 14, 2002.
Panel consisted of Worthen, J., and Griffith, J.
Gohmert, Jr., C.J., not participating
(DO NOT PUBLISH)