MICHAEL LEE DUEITT v. THE STATE OF TEXAS--Appeal from 24th District Court of Calhoun County

NUMBER 13-02-696-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

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MICHAEL LEE DUEITT, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 24th District Court
of Calhoun County, Texas.

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MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Opinion by Justice Rodriguez

Appellant, Michael Lee Dueitt, was tried before a jury and convicted of capital murder. The trial court assessed a sentence of life imprisonment. The trial court has certified that this case "is not a plea-bargain case, and the defendant has the right of appeal." See Tex. R. App. P. 25.2(a)(2). By one issue appellant contends he received ineffective assistance of counsel at trial. We affirm.

I. FACTS

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here 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.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

The standard of review for ineffective assistance of counsel was set out in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted in Texas in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). First, trial counsel's performance must fall below an objective standard of reasonableness under the prevailing professional norms. Strickland, 466 U.S. at 687; Washington v. State, 771 S.W.2d 537, 545 (Tex. Crim. App. 1989). Second, appellant must prove there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694; Washington, 771 S.W.2d at 545.

Our review of counsel's performance must be highly deferential. Strickland, 466 U.S. at 689. The burden of proving ineffective assistance of counsel is on the appellant and is one which requires proof by a preponderance of the evidence. Stafford v. State, 813 S.W.2d 503, 506 n.1 (Tex. Crim. App. 1991); Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985). An allegation of ineffective assistance of counsel will be sustained only if it is firmly founded and if the record affirmatively demonstrates counsel's alleged ineffectiveness. Ex parte McWilliams, 634 S.W.2d 815, 819 (Tex. Crim. App. 1980); Stone v. State, 17 S.W.3d 348, 350 (Tex. App.--Corpus Christi 2000, pet. ref'd).

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 he 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 record must contain evidence of counsel's reasoning, or lack thereof, to rebut this presumption. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). In the absence of evidence of counsel's reasons for the challenged conduct, the appellate court will assume a strategic motivation and will not conclude that the conduct was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).

Appellant contends he was denied effective assistance because his trial counsel failed to urge a motion for continuance and pursue an insanity defense at trial. Counsel filed several motions before trial, including a "Notice of Intent to Raise Insanity Defense and Offer Evidence Thereon," and a "Motion for Continuance." The request for a continuance was for additional time to investigate insanity as an affirmative defense. During a pretrial hearing on these motions, the trial judge stated he would approve funds to hire an expert to examine appellant for insanity if requested by defense counsel. However, the record indicates no request was made, nor was an insanity defense presented at trial. Instead, appellant and his counsel argued self-defense.

Nothing in the record demonstrates the rationale for counsel's trial strategy with respect to arguing self-defense as opposed to insanity. To successfully assert an ineffective assistance claim, appellant "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Jackson, 877 S.W.2d at 771 (quoting Strickland, 466 U.S. at 689). The record in this case contains no evidence to rebut this presumption. We conclude, therefore, that appellant has failed to establish by a preponderance of the evidence that counsel's performance was not reasonable. Since the first prong of the Strickland test is not met, we need not consider the second prong. Strickland, 466 U.S. at 697; Garcia, 57 S.W.3d at 440.

The judgment of the trial court is affirmed.

NELDA V. RODRIGUEZ

Justice

 

Do not publish.

Tex. R. App. P. 47.2(b).

 

Opinion delivered and filed

this 16th day of October, 2003.