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Court of Appeals of Texas, Dallas.


No. 05–10–01245–CR

    Decided: May 02, 2012

Before Justices Moseley, Lang–Miers, and Murphy


Opinion By Justice Murphy

Karl Arthur Kuchenbacker pleaded not guilty to a misdemeanor charge of driving while intoxicated, and the case was tried to a jury for one day.   After the jury returned a guilty verdict, the trial court assessed appellant's punishment at 120 days in jail and probated the sentence to fifteen months with a $1000 fine.   Appellant claims in two points of error that he was denied a fair trial because of ineffective assistance of counsel.   We affirm.


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 or 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).


Appellant's claim rests on (1) trial counsel's failure to object and request the jury to disregard evidence adduced on cross-examination of his expert witness regarding probable alcohol concentrations of persons involved in his dissertation study, and (2) counsel's failure to introduce any evidence of appellant's alleged medical disability.   The State responds that appellant has failed to meet his burden.   We agree with the State.

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).

Here, the record is silent as to counsel's strategy or reasoning.   Although appellant filed a motion for new trial, the motion did not address the issues before this Court, and appellant has failed to bring us any record supporting his claim of ineffective assistance of counsel.   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.   That 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 in either point of error.   See Williams, 301 S.W.3d at 687.   We overrule his two points of error and affirm the trial court's judgment.


Court of AppealsFifth District of Texas at DallasJUDGMENT


No. 05–10–01245–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the County Court at Law No. 5 of Collin County, Texas.  (Tr.Ct.No.005–88247–09).

Opinion delivered by Justice Murphy, Justices Moseley and Lang–Miers participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered May 2, 2012.

/Mary Murphy/




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