Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice Fillmore
A jury convicted Michael Dewayne Prestridge of two offenses of aggravated assault against a public servant and assessed punishment of seventy-five years’ imprisonment and a $5000 fine for each offense. In one point of error, Prestridge asserts he received ineffective assistance of counsel because trial counsel did not object to evidence of extraneous offenses during the guilt phase of the trial and failed to request a limiting instruction pertaining to the extraneous offense evidence. We affirm the trial court’s judgment. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in this case is well settled.
On June 3, 2010, members of the Joint East Texas Fugitive Task Force, including officers from the Sherman Police Department and the United States Marshals Service and a criminal investigator for the Grayson County District Attorney’s Office, met close to Prestridge’s house to discuss serving an arrest warrant on Prestridge. During the meeting, Prestridge left the house and saw the officers. A high-speed chase ensued. A number of law enforcement officers testified that, during the chase, Prestridge fired a gun in the direction of the officers. At trial, Prestridge did not dispute that he fired the gun. Rather, his defense was that he did not have the requisite mental state to commit the offense of aggravated assault against a public servant. Prestridge claimed he fired the gun in the air, not at the officers, and was attempting “suicide by cop.”
During the guilt phase of the trial, the State introduced evidence that Prestridge had previously been incarcerated and had stated he would kill himself before he returned to prison. There was testimony that Prestridge was depressed over the termination of his relationship with his girlfriend and had threatened to kill himself on the porch of his girlfriend’s residence. There was also evidence Prestridge had attempted to commit suicide on more than one occasion in the weeks prior to the high- speed chase. Finally, there was testimony that the week before the chase, Prestridge’s mother called the police because Prestridge had taken a number of pills and left the house. The officers could not locate Prestridge, but learned the following day that Prestridge had returned home. When two Sherman police officers went to Prestridge’s house to conduct a welfare check, Prestridge initially refused to open the door. When, at his mother’s request, Prestridge opened the door, he was holding a butcher knife and a container of lighter fluid. Prestridge stated he intended to kill himself and then asked the officers whether, if he ran at the officers, they would kill him. Prestridge stated both, “I’ll kill myself” and “I’ll make you kill me.” At one point, Prestridge poured the lighter fluid over his body and held up a lit cigarette lighter. After the situation was resolved and Prestridge was taken to the hospital, he stated that he was going to get a job so that he could buy a gun. Prestridge indicated that the next time a police officer came to arrest him, he was going to “make it count” and would “make the front page for [his] son to read.”
During his case-in-chief, Prestridge introduced evidence of a situation involving his girlfriend’s son, which culminated in a complaint that Prestridge held a knife to the son’s throat. One of the warrants being served on Prestridge on the day of the high-speed chase was based on this complaint. Both Prestridge’s girlfriend and her son testified that Prestridge did not hold a knife to the child’s throat. The son testified he lied about the incident. After the incident, “CPS” told Prestridge’s girlfriend that Prestridge could not be around her children. According to Prestridge’s girlfriend, Prestridge became very depressed and talked about either killing himself or “having the cops do it.” Prestridge’s girlfriend believed Prestridge tried to “have the cops do it” during the high-speed chase.
Prestridge was charged with aggravated assault against a public servant based on shooting at two Sherman police officers during the high-speed chase. The jury convicted Prestridge of both offenses and assessed punishment of seventy-five years’ imprisonment and a $5000 fine on each offense.
Ineffective Assistance of Counsel
In one point of error, Prestridge argues he received ineffective assistance of counsel because trial counsel failed, on multiple occasions, to object during the guilt phase of the trial to the admission of evidence of extraneous offenses or to request a limiting instruction for the evidence. Prestridge specifically complains that trial counsel failed to object to, or request a limiting instruction for, evidence relating to Prestridge (1) previously being in prison, (2) being barricaded in his house and threatening to kill himself the week before the high-speed chase, (3) holding a knife to a juvenile’s throat, (4) having a warrant for his arrest for injury to a child, and (5) making statements that he would kill himself before returning to prison, would “make the front page” if a police officer came to arrest him, would kill himself on his girlfriend’s front porch, and had a gun and was going to use it.
To be entitled to a new trial based on an ineffective assistance of counsel claim, a defendant must show that counsel’s performance was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex parte Lane, 303 S.W.3d 702, 707 (Tex. Crim. App. 2009). The first prong requires the defendant to show counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687-88, 689; Ex parte Lane, 303 S.W.3d at 707. The second prong requires the defendant to show there is a reasonable probability that, but for his counsel’s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687, 694; Ex parte Lane, 303 S.W.3d at 707. A defendant’s failure to satisfy one prong negates the need to consider the other prong. Strickland, 466 U.S. at 697; Ex parte Lane, 303 S.W.3d at 707.
In determining whether a defendant has met his burden, we consider the totality of the representation and the particular circumstances of each case. Ex parte Lane, 303 S.W.3d at 707. We strongly 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; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). 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).
Our review of counsel’s performance is highly deferential and begins with the assumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). We commonly assume a strategic motive if any can be imagined and conclude counsel’s performance was deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. Id. An ineffective assistance claim must be “firmly founded in the record,” and the record must affirmatively demonstrate that the claim has merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); see also Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App.), cert. denied, 131 S. Ct. 3073 (2011) (“Allegations of ineffectiveness must be based on the record, and the presumption of a sound trial strategy cannot be overcome absent evidence in the record of the attorney’s reasons for his conduct.”). In most cases, a silent record that provides no explanation for counsel’s actions will not overcome the strong presumption of reasonable assistance. Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim. App. 2008); Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Further, counsel should ordinarily be accorded an opportunity to explain his actions before being condemned as unprofessional and incompetent. Rylander, 101 S.W.3d at 111; Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Because the reasonableness of counsel’s choices often involve facts that do not appear in the appellate record, an application for writ of habeas corpus is generally the more appropriate vehicle to raise ineffective assistance of counsel claims. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).
Prestridge’s defense at trial was that he did not have the requisite mental state to commit aggravated assault against a public servant, but was depressed and attempting to commit “suicide by cop.” Trial counsel used the complained-about evidence to argue the issue in the case was whether Prestridge was homicidal or suicidal. Accordingly, we can imagine a trial strategy under which Prestridge’s counsel would choose not to object to the admission of the complained-about evidence or request an instruction limiting the jury’s consideration of the evidence. Further, in most cases, a silent record will not overcome the strong presumption of counsel’s reasonable assistance. See Rylander, 101 S.W.3d at 110-11. Although Prestridge filed a motion for new trial, he did not raise the issue of ineffective assistance of counsel in the motion and did not have a hearing on the motion. Consequently, Prestridge’s trial counsel has not been given an opportunity to explain his actions in failing to object to, or request a limiting instruction for, the complained-about evidence. Nor has Prestridge 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); Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (failing to object to every instance of improper evidence does not constitute ineffective assistance). We conclude Prestridge has not met his burden of showing that trial counsel’s performance fell below an objective standard of reasonableness. See Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003) (“The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose of establishing this claim.”).
We overrule Prestridge’s sole point of error and affirm the trial court’s judgment.
ROBERT M. FILLMORE
Do Not Publish
Tex. R. App. P. 47
Court of Appeals
Fifth District of Texas at Dallas
MICHAEL DEWAYNE PRESTRIDGE, Appellant
THE STATE OF TEXAS, AppelleeAppeal from the 397th Judicial District Court of Grayson County, Texas. (Tr.Ct.No. 059830).
Opinion delivered by Justice Fillmore, Justices FitzGerald and Murphy participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered August 7, 2012.
/Robert M. Fillmore/
ROBERT M. FILLMORE
Prestridge has not challenged the sufficiency of the evidence to support the convictions. Accordingly, we include only those facts necessary to address Prestridge’s complaint on appeal.