Adam Factor v. The State of Texas--Appeal from 379th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00653-CR

Adam FACTOR,

Appellant

v.

The STATE of Texas ,

Appellee

From the 379th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CR-6146W

Honorable Bert Richardson , Judge Presiding

Opinion by: Alma L. L pez , Chief Justice

Sitting: Alma L. L pez , Chief Justice

Catherine Stone , Justice

Sandee Bryan Marion , Justice

Delivered and Filed: July 12, 2006

AFFIRMED

Adam Factor appeals the trial court's judgment revoking his community supervision and sentencing him to four years' imprisonment. On appeal, Factor argues that he received ineffective assistance of counsel when his trial attorney failed to preserve sentencing error, because the trial court imposed a sentence disproportionate to the offense committed. We affirm the judgment of the trial court.

Background

In January 2003, Factor pled nolo contendere to the charge of burglary of a habitation while committing theft. The trial court deferred an adjudication of guilt and granted probation for a period of three years. In October 2003, the State filed a motion to enter adjudication of guilt and to revoke probation, alleging that Factor used a controlled substance in violation of the conditions of his probation. Factor was continued on probation. In August 2004, the State filed its second motion to enter adjudication of guilt and revoke probation. Factor pled true to the allegation that he failed to report to his probation officer. Following a hearing in September 2005, the trial court entered an adjudication of guilt, revoked Factor's probation, and sentenced Factor to four years' confinement. Counsel did not object to the punishment at the hearing or by post-trial motion.

Discussion

On appeal, Factor argues that trial counsel was ineffective for failing to object to the severity of the punishment. We review a claim of ineffective assistance of counsel by the two-prong test set out in Strickland v. Washington. 466 U.S. 668 (1984). To reverse a conviction on the grounds of ineffective assistance of counsel, the defendant must demonstrate by a preponderance of the evidence that: (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88; Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). In evaluating counsel's effectiveness, we look to the totality of the representation and the particular circumstances of each case. Id. at 813. Any allegation of ineffectiveness must be firmly founded in the record. Id. The defendant's burden is even more difficult when, as in this case, the defendant does not file a motion for new trial asserting ineffective assistance of counsel. See id. at 813-14.

Appellate review of counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Normally, "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.

In this case, the record does not contain a specific explanation for counsel's decision not to object to the sentence. We cannot speculate as to counsel's possible strategies from a silent record. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Accordingly, we must overrule Factor's issue on this direct appeal. Factor may, however, pursue his ineffective assistance claim via an application for writ of habeas corpus which must be filed in the trial court. See Thompson, 9 S.W.3d at 814-15; Tex. Code Crim. Proc. Ann. art. 11.07, 3(b) (Vernon 2005) (providing that an application for writ of habeas corpus after final conviction in a felony case must be filed with the clerk of the court in which the conviction being challenged was obtained).

Conclusion

Because the record is silent regarding counsel's failure to object to the sentence imposed by the trial court, we cannot say that Factor has met his burden of showing that counsel's representation

fell below an objective standard of reasonableness. Accordingly, Factor's issue is overruled, and the judgment of the trial court is affirmed.

Alma L. L pez , Chief Justice

DO NOT PUBLISH