RANDY RAY KRANNING v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice O'Neill

Appellant Randy Ray Kranning appeals his convictions for aggravated sexual assault of a child and indecency with a child.   After finding appellant guilty, the jury assessed punishment at thirty years' confinement and a $2500 fine in the aggravated assault case and two years' confinement in the indecency case.   In a single point of error, appellant contends the trial court abused its discretion in overruling his motion for new trial based on ineffective assistance of counsel.   For the following reasons, we affirm the trial court's judgments.

In this appeal, appellant contends his trial counsel was ineffective for failing to properly investigate the facts of the case and failing to object to harmful evidence.   Although the trial court conducted a hearing on appellant's motion for new trial, appellant did not call his trial attorney as a witness to explain his representation of appellant.   Appellant did testify.   He claimed that his trial attorney represented him for one-and-a-half years prior to trial, but had only one “substantive” one-on-one meeting with him.   According to appellant, they reviewed a videotape of the victim's interview, but never discussed the facts of the case or any defensive strategy.

After appellant testified, the State asked for a recess to attempt to contact appellant's trial attorney or his legal assistant.   The State was able to contact his legal assistant Teresa Flores, but not trial counsel.   Flores testified that, according to her file, trial counsel met with appellant three times.   She said appellant provided a witnesses list and she attempted to contact all of the witnesses and was able to contact most of them.   The motion for new trial was subsequently overruled by operation of law.

To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence that his attorney's conduct fell below an objective standard of reasonableness, and there is a reasonable probability that but for the attorney's unprofessional errors, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687–88, 695, (1984);  Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999).   We indulge a strong presumption counsel's conduct falls within the wide range of reasonable assistance.  Jackson v. State, 877 S.W.2d 768, 770–71 (Tex.Crim.App.1994).   To defeat this presumption, “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.”   Thompson, 9 S.W.3d at 812.   When the record contains no evidence of the reasoning behind trial counsel's actions, the record will rarely overcome the strong presumption of reasonable assistance.  Freeman v. State, 125 S.W.3d 505, 506–07 (Tex.Crim.App.2003);  see Jackson, 877 S.W.2d at 771;  see also Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App.2001).

Appellant first asserts counsel was ineffective for failing to meet with him and failing to adequately investigate.   To support his claim, appellant relies on his own self-serving testimony presented at the hearing on his motion for new trial.   However, the trial court, as trier of fact, was not required to believe appellant's self-serving and largely controverted testimony.   See Melton v. State, 987 S.W.2d 72, 75 (Tex.App.—Dallas 1998, no pet.).   Furthermore, appellant did not call his trial counsel as a witness at the motion for new trial to explain what investigations he performed and why.   Without testimony from trial counsel, we presume counsel made all significant decisions in the exercise of reasonably professional judgment.  Anderson v. State, 193 S.W.3d 34, 39 (Tex.App.—Houston [1st Dist.] 2006, pet. ref'd).

Appellant also asserts counsel was ineffective for failing to object to alleged victim impact evidence and comments on the child's credibility.   However, appellant provides no legal argument or authority to support his claims that the evidence was inadmissible in the first instance.   To show counsel was ineffective for failing to make an objection, appellant must show the trial court would have erred in overruling the objection.  Jacoby v. State, 227 S.W.3d 128, 131–33 (Tex.App.—Houston [1st Dist.] 2006, pet. ref'd);  Jagaroo v. State, 180 S.W.3d 793, 800 (Tex.App.—Houston [14th Dist.] 2005, pet. ref'd).   Further, as stated earlier, the record contains no evidence on the reasoning for counsel's actions.   Thus, we cannot meaningfully evaluate counsel's failure to object.   We conclude appellant has not overcome the presumption of reasonable assistance

of counsel.   See Freeman, 125 S.W.3d at 506–07.   We resolve the sole issue against appellant and affirm the trial court's judgments.

MICHAEL J. O'NEILL JUSTICE