Harry Hampton Truelove, III v. The State of Texas--Appeal from County Court at Law No 2 of Smith County

NO. 12-06-00061-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

HARRY HAMPTON TRUELOVE, III, APPEAL FROM THE

APPELLANT

V. COUNTY COURT AT LAW #2

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Harry Hampton Truelove appeals his conviction for assault, for which he was sentenced to confinement for one hundred eighty days. In one issue, Appellant contends that he received ineffective assistance of counsel. We affirm.

Background

  Appellant was charged by information with assault. Appellant pleaded not guilty and the matter proceeded to jury trial. At trial, the testimony revealed that the incident in question occurred on February 19, 2005 at The Harbor restaurant and bar located on Lake Tyler in Smith County, Texas. Appellant and David Thornton, who were at The Harbor on the date in question, got into an argument. The owner of The Harbor asked Appellant to leave and escorted him to the door. Shortly thereafter, Appellant called out to Floyd Kirkland, a friend of Thornton s, to come to the front door where Appellant was standing. Kirkland obliged and as he approached Appellant,1

Appellant struck Kirkland, knocking him to the floor.

The jury found Appellant guilty as charged. Following a trial on punishment, the trial court sentenced Appellant to confinement for one hundred eighty days. This appeal followed.

Ineffective Assistance of Counsel

In his sole issue, Appellant argues that he received ineffective assistance of counsel. Specifically, Appellant contends that his trial counsel was ineffective in that he (1) stated both during voir dire and in his opening statement that the evidence would show that as Kirkland approached Appellant, he carried the pool cue butt end up, a manner that indicated he would use it as a club and (2) stated both during voir dire and in his opening statement that the evidence would show that Kirkland possessed animosity toward Appellant for romancing Kirkland s ex-wife and girlfriend.2 Thus, according to Appellant, his counsel raised the jury s expectations regarding such unsupported contentions and wasted an opportunity to present Appellant s self defense theory.

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:

1. 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?

2. 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 noncapital 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 his trial counsel s actions fell below the professional norm. However, even assuming arguendo that the actions of Appellant s trial counsel, 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.

Despite repeated readings of Appellant s brief, we can uncover no argument addressing the second prong of the Strickland test. Rather, Appellant makes only a passing reference to the issue, stating, Here, by any objective standard, defense counsel failed to render adequate legal assistance and by doing so, undermined the proper functioning of the adversarial process resulting in an unjust result for appellant. 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 his counsel s alleged unprofessional errors, there exists a reasonable probability that the result of the proceedings would have been different. We hold that Appellant has failed to meet his burden under Strickland. Appellant s sole issue is overruled.

Conclusion

Having overruled Appellant s sole issue, we affirm the trial court s judgment.

SAM GRIFFITH

Justice

Opinion delivered October 25, 2006.

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

(DO NOT PUBLISH)

1 There is conflicting testimony on this point. Some witnesses testified that Kirkland, who was playing pool, carried his pool cue with him as he approached Appellant. Others testified that Kirkland set his pool cue down before approaching Appellant. Moreover, Appellant testified that he did not call Kirkland over to the front door.

2 Appellant argues that counsel was ineffective for making these statements in that neither was ultimately supported by any witness s testimony, including Appellant s.