JEFF DRONE v. THE STATE OF TEXAS--Appeal from 24th District Court of Victoria County

 NUMBER 13-04-00589-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

JEFF DRONE, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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

 MEMORANDUM OPINION

 Before Justices Hinojosa, Rodriguez, and Garza

Memorandum Opinion by Justice Hinojosa

Appellant, Jeff Drone, pleaded guilty to the offense of sexual assault, and the trial court assessed his punishment at ten years= imprisonment. In two issues, appellant contends (1) the State made inadmissible references to plea negotiations during closing argument on punishment, and (2) he received ineffective assistance of counsel. We affirm.

Appellant was indicted for sexual assault. He entered a plea of not guilty and requested a jury trial. At trial, the videotaped confession of appellant was presented and published to the jury. Appellant then changed his plea to guilty and asked that the court assess punishment. The jury was dismissed, and the trial court proceeded to the punishment phase of the trial.

During the punishment phase, appellant took the stand and testified that he never wanted to Ago to court@ but he wanted to help his family. He testified that it was his desire to plead guilty months earlier, but he had concerns regarding the facts of the case. He stated that although the recommendation did not include penitentiary time, he did not want to accept the plea agreement because he wanted to keep his job.

On cross-examination, the State asked appellant what kind of punishment he thought he should receive. Appellant stated that he thought about the offer made to him by the State, the offer where he could stay out of prison and work. The State asked appellant if that was the offer he had chosen not to take, and appellant replied affirmatively. The State then asked, AMr. Drone, you had the opportunity, according to you, to take the State=s offer a long time ago, isn=t that correct?@ Appellant nodded in reply, and the State proceeded, AAnd you chose not to. You chose not to take probation back then and . . . . Now why should B do you think that you should have probation today?@

During closing argument, the State once again referred to the prior plea discussions in response to appellant=s testimony that it was his desire to do the right thing for his family.

In his first issue, appellant asserts the State=s reference to the plea discussions is improper under rule 410 of the Texas Rules of Evidence. Tex. R. Evid. 410. Rule 410 provides, in pertinent part, as follows:

Except as otherwise provided in this rule, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority, in a civil case, that do not result in a plea of guilty or that result in a plea of guilty later withdrawn, or in a criminal case, that do not result in a plea of guilty or a plea of nolo contendere or that results in a plea, later withdrawn, of guilty or nolo contendere.

However, such a statement is admissible in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it.

Id.

The record shows it was appellant, not the State, that first presented testimony regarding the prior plea discussions. The State was, therefore, allowed Ain fairness@ to cross-examine appellant regarding his testimony and to respond during closing argument to appellant=s testimony. Appellant=s first issue is overruled.

In his second issue, appellant complains that he received ineffective assistance of counsel during trial because counsel failed to object to the State=s questions and argument regarding the prior plea discussions.

The standard of review for a claim of ineffective assistance of counsel is well established. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

In the absence of affirmative evidence contained in the record, we presume that trial counsel=s actions were strategically motivated and that counsel=s conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at 814; Jackson, 877 S.W.2d at 771. We 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).

The record in this case does not show trial counsel=s reasoning behind the challenged conduct. Because appellant=s complaint that he received ineffective assistance of trial counsel is not firmly founded in the record, and the record does not affirmatively demonstrate the alleged ineffectiveness, we cannot say that trial counsel=s performance failed to constitute reasonably effective assistance by falling below an objective standard of reasonableness.[1] Appellant=s second issue is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this the 13th day of July, 2006.

[1] Appellant is not foreclosed from presenting his claim via collateral attack by virtue of an application for post conviction writ of habeas corpus. See Ex parte Nailor, 149 S.W.3d 125, 130 31 (Tex. Crim. App. 2004); Ex parte Varelas, 45 S.W.3d 627, 629 (Tex. Crim. App. 2001).