05-11-00365-CR Graves, Marvin Wayne v. The State of Texas
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice Murphy
Marvin Wayne Graves pleaded not guilty to a first-degree felony offense of murder, and the case proceeded to a jury trial. Tex. Penal Code Ann. § 19.02(c)(1) (West 2011). The jury returned a guilty verdict and assessed his punishment at ninety years’ incarceration. Appellant claims in a single point of error that he was denied a fair trial because of ineffective assistance of counsel. We affirm.
Appellant shot and killed Mona Youtsey while both were at the Elks Lodge in Sherman, Texas. His close friend was called as a witness during both the guilt-innocence phase and the punishment phase of trial. During the punishment phase, appellant’s friend testified that she believed the murder could have been an accident. Yet, during the guilt-innocence phase, she offered no similar testimony and no questions regarding the accidental nature of the incident were posed to her.
Appellant’s claim of ineffective assistance of counsel focuses on trial counsel’s failure to question this witness regarding the accidental nature of the offense during the guilt-innocence phase. Appellant contends that, had a more extensive cross-examination been undertaken of this or other witnesses, the accidental nature of the incident could have been uncovered. He claims he then would have been entitled to receive a jury charge on the lesser included offenses of manslaughter or criminally negligent homicide. Appellant further contends that harm must be presumed because manslaughter and criminally negligent homicide carry a lower maximum possible sentence than murder.
To prevail on an ineffective assistance of counsel claim, appellant must show by a preponderance of the evidence both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); Williams v. State,301 S.W.3d 675, 687 (Tex. Crim. App. 2009), cert. denied, 130 S. Ct. 3411 (2010). Appellant must demonstrate under the first prong that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687-88; Ex parte Lane, 303 S.W.3d 702, 707 (Tex. Crim. App. 2009). To meet the second prong, appellant has to show the existence of a reasonable probability, sufficient to undermine confidence in the outcome, that but for counsel’s deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694; Ex parte Lane, 303 S.W.3d at 707. A defendant’s failure to satisfy one prong negates a court’s need to consider the other prong. Williams, 301 S.W.3d at 687. In determining whether appellant met his burden, we consider the totality of the representation and the particular circumstances of this case. Ex parte Lane, 303 S.W.3d at 707. We presume counsel’s conduct fell within the wide range of reasonable professional assistance and do not judge counsel’s actions in hindsight. Strickland, 466 U.S. at 689; Ex parte Lane, 303 S.W.3d at 707. The fact that another attorney might have pursued a different strategy at trial is not sufficient to prove counsel was ineffective. Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004).
For appellant to succeed on an ineffective assistance of counsel claim, the record must demonstrate affirmatively the deficient performance he challenges. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Without evidence of counsel’s considerations, we will presume sound trial strategy. See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
The State argues the record is insufficient to overcome the presumption that the trial counsel’s actions were part of a strategic plan. We agree with the State. Here, appellant has failed to bring us any record supporting his claim of ineffective assistance of counsel. The record is silent as to counsel’s strategy or reasoning. In most cases, a silent record will not overcome the strong presumption of counsel’s reasonable assistance. See id. at 110-11. A basic corollary is that counsel should be given the opportunity to explain any actions or inactions before being adjudged incompetent. Id. at 111. This has not occurred, and appellant has not shown that this case is one of those extraordinary situations in which the face of the record shows counsel’s challenged 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) (citing Thompson, 9 S.W.3d at 814).
We conclude appellant failed to demonstrate under the first Strickland prong that counsel’s performance was deficient. See Williams, 301 S.W.3d at 687. We overrule his single point of error and affirm the trial court’s judgment.
Do Not Publish
Tex. R. App. P. 47
Court of Appeals
Fifth District of Texas at Dallas
MARVIN WAYNE GRAVES, Appellant
THE STATE OF TEXAS, AppelleeAppeal from the 15th Judicial District Court of Grayson County, Texas. (Tr.Ct.No. 059700).
Opinion delivered by Justice Murphy, Justices FitzGerald and Fillmore presiding.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.