GEORGE WESLEY DEMPSON v. THE STATE OF TEXAS (2010)

MEMORANDUM OPINION

Opinion By Justice Bridges

Appellant George Wesley Dempson appeals his conviction for evading arrest with a motor vehicle.   Following his plea of true to the enhancement paragraph, the trial court sentenced appellant to six years in prison.   We affirm.

Background

In January 2008, a grocery store manager confronted appellant and another person in the parking lot about stolen merchandise.   The men fled with the property and the manager called 911.   Officer Bly responded to the call and saw appellant driving.   Officer Bly drove behind appellant's car and activated his lights.   Rather than pulling over, appellant sped up and drove through several streets.   The car eventually stopped, but appellant jumped out of the car and ran.   Officer Bly chased him, eventually catching him when appellant tried to jump a fence.   Appellant was larger than Officer Bly, and the officer was only able to restrain appellant after two other officers joined him.

Appellant was charged by indictment and, at the end of jury selection at trial, appellant and the State agreed to a number of challenges for cause.   After a break, the trial court read the list of selected jurors, and neither side objected to the list.   Then, the jury was empaneled.

The jury convicted appellant of evading arrest with a motor vehicle, and the trial court sentenced appellant to six years in prison.   Following appellant's conviction, appellant's counsel filed a request for a supplemental clerk's record to include “information sheets of jurors who were voir dired” in the case.   Appellant's counsel requested the clerk to prepare an affidavit if she was “unable to find these juror information sheets after a diligent search.”   In response to the request, the deputy district clerk provided an affidavit, indicating the juror information sheets were not filed in the case and, accordingly, she was unable to prepare a supplemental clerk's record containing the requested information.   This appeal ensued.

Analysis

In a single issue, appellant contends he received ineffective assistance of counsel because his lawyer failed to make a Batson challenge “during voir dire.”   Appellant further argues his trial counsel was ineffective because she failed to file the juror information sheets, which he alleges would include the race of the prospective jurors and would provide an adequate record to review trial counsel's failure to make a Batson challenge.

A claim of ineffective assistance of counsel is reviewed under the Strickland test.   Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App.1999) (citing Strickland v. Washington, 466 U.S. 668 (1984)).   In determining whether counsel rendered ineffective assistance, an appellate court considers two factors:  (1) whether counsel's performance fell below an objective standard of reasonableness, and (2) whether, but for counsel's deficient performance, the result of the proceeding would have been different.   Thompson v. State, 9 S.W.3d 808, 812 (Tex Crim.App.1999).   Appellant bears the burden of proving his counsel was ineffective by a preponderance of the evidence.   Thompson, 9 S.W.3d at 813.

There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.  Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002);  Thompson, 9 S.W.3d at 813.   To defeat this presumption, appellant must prove that there was no plausible professional reason for a specific act or omission.  Bone, 77 S.W.3d at 836.   Any allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.   Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996)).   Thus, a reviewing court will rarely be able to fairly evaluate the merits of an ineffective assistance claim on direct appeal because the record on direct appeal is not developed adequately to reflect the reasons for defense counsel's actions at trial.   Mata v. State, 226 S.W.3d 425, 430 (Tex.Crim.App.2007).

Here, we do not have an adequate record to review appellant's claim of ineffectiveness.   See id.;  Thompson, 9 S.W.3d at 813-15.   Appellant must prove that there is no possible strategic reason for counsel's actions and trial counsel should be given the opportunity to explain her actions before being denounced as “ineffective.”  Bone, 77 S.W.3d at 836.   The record before us is devoid of evidence from trial counsel herself and is “simply undeveloped and cannot adequately reflect the failings of trial counsel.” ¹  Thompson, 9 S.W.3d at 814 (citing Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App.1998)).

The record is silent as to why appellant's trial counsel did not make objections to the State's strikes or why she chose not to file the juror information sheets.   Therefore, appellant has failed to rebut the presumption counsel's decisions were reasonable.  Bone v. State, 77 S.W.3d at 833;  Thompson, 9 S.W.3d at 813-14.

Therefore, we overrule appellant's sole issue on appeal and affirm the judgment of the trial court.

FOOTNOTES

FN1. Among its various shortcomings, the record is devoid of evidence regarding the race of the prospective jurors..  FN1. Among its various shortcomings, the record is devoid of evidence regarding the race of the prospective jurors.

DAVID L. BRIDGES JUSTICE