PAUL EDWARD CARPENTER v. THE STATE OF TEXAS--Appeal from 24th District Court of Victoria County

NUMBER 13-02-630-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI EDINBURG

PAUL EDWARD CARPENTER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court

of Victoria County, Texas.

M E M O R A N D U M O P I N I O N

Before Chief Justice Valdez and Justices Hinojosa and Castillo

Opinion by Chief Justice Valdez

After a jury trial, appellant, Paul E. Carpenter, was convicted of one count of aggravated sexual assault of a child and two counts of indecency with a child. The trial court assessed punishment at forty-years confinement for the count of aggravated sexual assault and ten-years confinement for each count of indecency with a child. Appellant raises the following two issues on appeal: (1) appellant was denied his Sixth Amendment right to effective assistance of counsel; and (2) the trial court erred by not sua sponte declaring a mistrial based on prosecutorial misconduct. We disagree and affirm the judgment of the trial court.

I. Factual and Procedural Background

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 basic reasons for it. See Tex R. App. P. 47.4.

II. Analysis

1. Ineffective Assistance of Counsel

Appellant s first issue asserts he was denied his Sixth Amendment right to effective assistance of counsel. Appellant s contention is based on trial counsel s failure to object to the admission of four instances of extraneous acts, and nineteen instances when trial counsel objected but failed to pursue the objection to an adverse ruling. Appellant also complains that trial counsel opened the door allowing consideration of otherwise inadmissible evidence.

Standard of Review

We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). It is appellant's burden to show by a preponderance of the evidence that (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (2) the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Our review of counsel's representation is highly deferential and presumes counsel's actions fell within a wide range of reasonable professional assistance. See Mallett, 65 S.W.3d at 63. It is appellant's burden to prove, by a preponderance of the evidence, that there is no plausible professional reason for a specific act or omission. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

A substantial risk of failure accompanies a claim of ineffective assistance of counsel on direct appeal because the record is generally underdeveloped and cannot adequately reflect the failings of trial counsel. See Thompson, 9 S.W.3d at 814; McCullough v. State, 116 S.W.3d 86, 92 (Tex. App. Houston [14th Dist.] 2001, pet. ref'd.). Therefore, it is critical that the defendant make the necessary record in the trial court to rebut the Strickland presumption that counsel's conduct was strategic. See Thompson, 9 S.W.3d at 814; McCullough,116 S.W.3d at 92. This kind of record is best developed in a hearing on a motion for new trial, or by application for a writ of habeas corpus. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (per curiam); McCullough, 116 S.W.3d at 92. Without evidence of the strategy and methods involved concerning counsel's actions at trial, the court will presume sound trial strategy. See Thompson, 9 S.W.3d at 814.

Analysis

In the instant case, the record does not contain any evidence of the strategy and methods involved concerning counsel s actions at trial, and appellant does not assert the record contains the necessary evidence. Instead, appellant suggests that an exception to Strickland, set out in United States v. Cronic, 466 U.S. 648, 659-60 (1984), applies in this instance. Cronic presumes prejudice where there has been actual breakdown in the adversarial process at trial. See Cronic, 466 U.S. at 657-58. However, only when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel's actual performance at trial. See id. at 662. Upon review of the record, we cannot conclude that the surrounding circumstances in this case justify application of the Cronic presumption, nor can we conclude that there was an actual breakdown in the adversarial process at trial. Accordingly, we conclude the Cronic exception is not applicable in this case and there is no evidence in the record to overcome the Strickland presumption. We therefore overrule appellant s first issue. //

2. Sua Sponte Declaration of Mistrial

Appellant s second issue asserts the trial court erred by not sua sponte declaring a mistrial based on prosecutorial misconduct. Appellant complains of the prosecution s (1) references to his affiliation with the Aryan Brotherhood, (2) inaccurate accusation that appellant was found guilty of family violence, and (3) attempt to introduce extraneous offense evidence without notice. Appellant avers that the State s repeated improper references to the Aryan Brotherhood, combined with the failure of trial counsel to properly preserve error regarding such references, was such as to require the court to sua sponte grant a mistrial.

Analysis

The trial court has authority to sua sponte declare a mistrial if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial. See, e.g., Ward v. State, 520 S.W.2d 395, 397-98 (Tex. Crim. App. 1975) (holding that trial court would have been justified in sua sponte ordering mistrial when indictment was fatally defective). However, in this case, the errors of which appellant complains are not procedural errors. Additionally, appellant failed to preserve the proposed errors for appellate review. See Tex. R. App. P. 33.1; Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003) (reiterating that to preserve error, defendant must make timely and specific objection and pursue it to an adverse ruling). The record shows appellant made timely objections to the evidence, and the court sustained the objections, but appellant failed to pursue his objections to an adverse ruling. Accordingly, we overrule appellant s second issue.

III. Conclusion

We affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Do not publish.

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

Memorandum Opinion delivered and filed

this 17th day of February, 2005.