Heidi McMullen v. The State of Texas--Appeal from County Court at Law of Houston County

NO. 12-02-00325-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

HEIDI MCMULLEN,

 
APPEAL FROM THE

APPELLANT

 

V.

 
COUNTY COURT AT LAW OF

THE STATE OF TEXAS,

APPELLEE

 
HOUSTON COUNTY, TEXAS
MEMORANDUM OPINION

Heidi McMullen ("Appellant") appeals her conviction for theft by check, for which she was sentenced to confinement for sixty days and fined two hundred dollars. Appellant's sentence was suspended and Appellant was placed on community supervision for one year. Appellant raises one issue on appeal. We affirm.

 

Background

Appellant was indicted for theft by check arising from her attempt to purchase a horse. Counsel was appointed to represent Appellant. Appellant pleaded not guilty and the matter proceeded to jury trial. The State of Texas (the "State") called four witnesses to testify in support of its case against Appellant. Appellant and one additional witness testified in her defense. The jury found Appellant guilty as charged. The trial court sentenced Appellant to confinement for sixty days and fined Appellant two hundred dollars, but suspended Appellant's sentence and placed Appellant on community supervision for one year.

 

Ineffective Assistance of Counsel

In her sole issue, Appellant contends that her trial counsel was ineffective. Among the reasons cited by Appellant are that (1) her attorney failed to present certain evidence, (2) her attorney failed to make an independent investigation of the State's allegations and Appellant's claims or defenses, (3) her attorney never fully informed Appellant of her right not to testify, and (4) her attorney did not make any objections to the State's witnesses or its presentation of evidence.

The proper standard by which to gauge the adequacy of representation by counsel is articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). See also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). The test set forth in Strickland requires a two-step analysis:

 
Did the attorney's performance fail to constitute "reasonably effective assistance," i.e. did the defense attorney's representation fall below an objective standard of reasonableness under prevailing professional norms?
If so, was there a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings could have been different?

See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. The test in Strickland is properly applied to the punishment phase of a non-capital case as well. See Hernandez, 988 S.W.2d at 772.

A "reasonable probability" was defined by the Supreme Court as a "probability sufficient to undermine confidence in the outcome." Id. Counsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. See Hernandez, 726 S.W.2d at 55. The burden is on the appellant to overcome that presumption. See Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.- Texarkana 2000, pet. ref'd). The appellant must show specific acts or omissions that constitute ineffective assistance and affirmatively prove that those acts fall below the professional norm for reasonableness. Id.

After proving error, the appellant must affirmatively prove prejudice. Id. The appellant must prove that his attorney's errors, judged by the totality of the representation and not by isolated instances of error, denied him a fair trial. Id. It is not enough for the appellant to show that the errors had some conceivable effect on the outcome of the proceedings. Id. He must show that there is a reasonable probability that, but for his attorney's errors, the jury would have had a reasonable doubt about his guilt. Id.

In the case at hand, Appellant argues at length as to why certain actions on her trial counsel's behalf fell below the professional norm. However, even assuming arguendo that Appellant's trial counsel's actions, as noted in Appellant's brief, satisfied the first prong of the Strickland test, Appellant must still affirmatively prove prejudice. See Burruss, 20 S.W.3d at 186. It is not enough for the appellant to merely show that the errors had some conceivable effect on the outcome of the proceedings. Id.

In her brief, after noting her burden under the second prong of the Strickland test, Appellant states, "In the present case, it is apparent that the outcome would have been different." Such a conclusory statement is not an adequate means by which Appellant can satisfy her burden of proof. Despite repeated readings of Appellant's brief, we can uncover no argument addressing the second prong of the Strickland test.

We iterate that the burden of proof as to this issue rests squarely upon Appellant. See Burruss, 20 S.W.3d at 186. As such, we will neither surmise nor devise our own conclusions absent some cogent argument on Appellant's behalf that, but for her counsel's alleged unprofessional errors, there exists a reasonable probability that the result of the proceedings would have been different.

 

Conclusion

Since Appellant has failed to satisfy her burden under Strickland, we hold that she was not denied her right to effective assistance of counsel. Appellant's sole issue is overruled and the judgment of the trial court is affirmed.

JAMES T. WORTHEN

Chief Justice

 

Opinion delivered March 21, 2003.

Panel consisted of Worthen, C.J. and Griffith, J.

 
(DO NOT PUBLISH)