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Court of Appeals of Texas, Dallas.


No. 05-09-00796-CR

    Decided: December 30, 2010

Before Justices Morris, Francis, and Murphy


Opinion By Justice Francis

Philippe Padieu was indicted on six charges of aggravated assault with a deadly weapon for intentionally, knowingly, and recklessly causing six women serious bodily injury by exposing them to the HIV virus through unprotected sexual contact.   A jury convicted appellant on all charges and assessed punishment, enhanced by a prior felony conviction, at forty-five years in prison in five cases and twenty-five years in prison in the sixth case.   In two issues, appellant complains he was denied effective assistance of counsel at trial.   We affirm.

Briefly, the evidence showed that appellant's physician informed him in September 2005 that he had tested positive for HIV and counseled appellant on the need to practice safe sex, such as abstinence or barrier protection.   Appellant ignored the doctor's warning and had unprotected sex with the six complainants in these cases without informing them he was HIV positive.   Each woman later tested positive for HIV. Evidence also showed that after appellant knew he had infected some of the women, he continued to engage in sexual intercourse with new women without apprising them of his HIV status.   Even after he was served with a health directive from the Collin County Health Authority in February 2007 ordering him to cease and desist from engaging in sexual intercourse without first notifying his partner of his HIV status, appellant had sex with another woman without telling her he was HIV positive.

In two issues, appellant contends trial counsel provided ineffective assistance of counsel by (1) telling the jury that he should be sentenced to twenty years in prison in closing punishment argument, (2) failing to present expert rebuttal testimony in regard to DNA evidence, (3) failing to object to hearsay evidence regarding the HIV status of the complaining witnesses' other sexual partners, and (4) failing to properly object to expert testimony that appellant was the source of the complainants' HIV infections.

We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984) and adopted in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App.1986).   To obtain reversal on grounds of ineffective assistance of counsel, appellant must show that (1) counsel's representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced him;  that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different.   See Andrews v. State, 159 S.W.3d 98, 101-02 (Tex.Crim.App.2005).   We commonly assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it.  Andrews, 159 S.W.3d at 101.

The court of criminal appeals has made clear that, in most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance.   See 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.  Id. at 111.   Because the reasonableness of trial counsel's choices often involve facts that do not appear in the appellate record, an application for writ of habeas corpus is the more appropriate vehicle to raise ineffective assistance of counsel claims.   See Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App.2002).

In this case, appellant filed a motion for new trial but did not raise a complaint of ineffective assistance of counsel;  consequently, trial counsel has not been given an opportunity to explain his actions.   Because the record provides no explanation for counsel's actions or inactions, appellant has not met his burden of overcoming the strong presumption of reasonable assistance.   We overrule both issues.

We affirm the trial court's judgments.


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