Applon, James Noah v. The State of Texas--Appeal from 232nd District Court of Harris County

Affirmedand Opinion filed May 30, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00964-CR

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JAMES NOAH APPLON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris  County, Texas

Trial Court Cause No. 867,011

O P I N I O N

Appellant, James Noah Applon, was convicted by a jury of the offense of possession of cocaine weighing more than four grams but less than two hundred grams, and sentenced to a term of ten years= imprisonment. In a single point of error, appellant complains he was denied effective assistance of counsel. We affirm.

Appellant was arrested on January 24, 2001, in the parking lot of a convenience store after Derek Fuller, an officer of the Houston Police Department, observed him collect a small plastic bag from inside an automobile, place that plastic bag inside a paper bag, and surreptitiously drop the bag by a fence. When later opened by Officer Fuller, the plastic bag was found to contain 12.6 grams of crack cocaine. Thereafter, at trial, Officer Fuller testified as to the weight of cocaine found, its street value of $1,260, that it would not be for someone=s personal use, and that a person would be able to Aget high from the crack@ 126 times, if he or she used 1/10th of a gram each time.

On appeal, appellant complains his trial counsel was ineffective for failing to: (1) object to Officer Fuller=s testimony; and (2) object to the prosecutor=s statement during closing argument that Asomeone with 1300 dollars of crack cocaine . . . might have a weapon.@

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 1977). The right to counsel necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The United States Supreme Court has established a two-prong test to determine whether counsel is ineffective. Id. First, appellant must demonstrate counsel=s performance was deficient and not reasonably effective. Id. at 688B92. Second, appellant must demonstrate the deficient performance prejudiced the defense. Id. at 693. Essentially, appellant must show that his counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and there is a reasonable probability that, but for his counsel=s unprofessional errors, the result of the proceeding would have been different. Id.; Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997).

Judicial scrutiny of counsel=s performance must be highly deferential and we are to indulge the strong presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We assume counsel=s actions and decisions were reasonably professional and that they were motivated by sound trial strategy. Id. Moreover, it is the appellant=s burden to rebut this presumption, by a preponderance of the evidence, through evidence illustrating why trial counsel did what he did. Id. Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds by, Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998). Where the record contains no evidence of the reasoning behind trial counsel=s actions, we cannot conclude counsel=s performance was deficient. Jackson, 877 S.W.2d at 771; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (holding that when the record provides no explanation as to the motivation behind trial counsel=s actions, an appellate court should be hesitant to declare ineffective assistance of counsel). An appellate court is not required to speculate on the reasons behind trial counsel=s actions when confronted with a silent record. Jackson, 877 S.W.2d at 771.

If appellant proves his counsel=s representation fell below an objective standard of reasonableness, he must still affirmatively prove prejudice as a result of those acts or omissions. Strickland, 466 U.S. at 693; McFarland, 928 S.W.2d at 500. Counsel=s errors, even if professionally unreasonable, do not warrant setting the conviction aside if the errors had no effect on the judgment. Strickland, 466 U.S. at 691. Appellant must prove that counsel=s errors, judged by the totality of the representation, denied him a fair trial. McFarland, 928 S.W.2d at 500. If appellant fails to make the required showing of either deficient performance or prejudice, his claim fails. Id.

Appellant did not file a motion for new trial and the record contains no evidence of the reasoning behind his trial counsel=s actions in failing to object to both Officer Fuller=s testimony and the State=s closing argument. An appellate court is not required to speculate on the reasons behind trial counsel=s actions when confronted with a silent record. Jackson, 877 S.W.2d at 771; see also Thompson, 9 S.W.3d at 814 (holding that when the record provides no explanation as to the motivation behind trial counsel=s actions, an appellate court should be hesitant to declare ineffective assistance of counsel). Appellant fails to provide this Court with any evidence to affirmatively demonstrate the ineffectiveness of his trial counsel. Thus, appellant has not satisfied his burden on appeal to rebut the presumption that counsel=s actions were reasonably professional and motivated by sound trial strategy.

Moreover, even if the record rebutted the presumption of sound trial strategy, appellant has not demonstrated that trial counsel=s performance prejudiced his defense. He has not, therefore, met the second prong of the test. Because appellant produced no evidence concerning trial counsel=s reasons for choosing the course he did, nor did appellant demonstrate prejudice to his defense, his sole point of error is overruled. McFarland, 928 S.W.2d at 500.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed May 30, 2002.

Panel consists of Justices Hudson, Fowler, and Edelman.

Do Not Publish CTex. R. App. P. 47.3(b).