Janice Pieper v. The State of Texas--Appeal from 63rd Judicial District Court of Edwards County

MEMORANDUM OPINION
No. 04-03-00241-CR
Janice PIEPER,
Appellant
v.
The STATE of Texas,
Appellee
From the 63rd Judicial District Court, Edwards County, Texas
Trial Court No. 1450
Honorable Thomas F. Lee, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: December 8, 2004

AFFIRMED

Janice Pieper appeals her conviction of burglary of a habitation with intent to commit theft. Because the sole issue presented in this appeal involves the application of well-settled principles of law, we affirm the trial court's order in this memorandum opinion. See Tex. R. App. P. 47.4.

The sole issue raised by Pieper on appeal is that trial counsel failed to provide effective assistance of counsel because he opened the door to evidence of extraneous offenses. Pieper argues that trial counsel did not file a request for notice of the State's intent to introduce extraneous offenses, did not file a motion in limine requiring the State to approach the bench before offering evidence of extraneous offenses, and did not request a limiting instruction at the time the evidence was admitted.

To prevail on a claim for ineffective assistance of counsel, Pieper must show by a preponderance of the evidence that counsel's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999). In addition, Pieper must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. "There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Id. at 813. "To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. at 814. Each of Pieper's complaints relate to actions she believes her trial counsel failed to take; however, the record is silent as to the reason trial counsel failed to take those actions. Since the record is silent, Pieper cannot overcome the presumption that her trial counsel's decisions during trial fell within the wide range of reasonable professional assistance. Accordingly, the trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH