Dru Allen Ewing v. State ( 2005 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Dru Allen Ewing

Appellant

Vs.                   No. 11-03-00375-CR -- Appeal from Palo Pinto County

State of Texas

Appellee

Dru Allen Ewing appeals his conviction by a jury, following his plea of guilty, of the offense of delivery of a controlled substance, methamphetamine, in an amount of one gram or more but less than four grams.  The jury, finding the enhancement paragraph to be true, assessed his punishment at 75 years confinement in the Texas Department of Criminal Justice, Institutional Division, and also assessed a $5,000 fine. He contends in a sole issue on appeal that he was denied effective assistance of counsel in violation of both the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Texas Constitution because his attorney presented a defense of entrapment at the sentencing hearing as opposed to a pretrial hearing, thereby eliminating the State=s burden to disprove entrapment beyond a reasonable doubt.  We affirm.

We apply a two-pronged test to ineffective assistance of counsel claims.  Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Cr.App.1999). First, appellant must show that his counsel=s performance was deficient; second, appellant must show that the deficient performance prejudiced the defense.  Wiggins v. Smith, supra at 521; Strickland v. Washington, supra at 687.

In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case.  Thompson v. State, supra at 813.  A defendant must demonstrate that counsel=s representation fell below an objective standard of reasonableness and prevailing professional norms at the time of the alleged error.  Wiggins v. Smith, supra at 521; Strickland v. Washington, supra at 688-89.  A[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.@  Strickland v. Washington, supra at 690.  An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Thompson v. State, supra at 814.  Our scrutiny of counsel=s performance must be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight.  Strickland v. Washington, supra at 689.

The second prong of Strickland requires a showing that counsel=s errors were so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is reliable.  Id. at 687.  In other words, appellant must show there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different.  Id. at 694.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Id. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.  Id. at 697.

Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel=s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel=s conduct was reasonable and professional.  Bone v. State, 77 S.W.3d 828, 833 (Tex.Cr.App.2002).  Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation.  Id.

Our record does not contain any reason why Ewing and his counsel chose for him to enter a plea of guilty and to present evidence of entrapment at his sentencing hearing rather than in a pretrial hearing prior to his plea.  There being no showing that this was not done as a result of trial strategy, Ewing has failed to overcome the presumption that his trial counsel=s conduct was reasonable and professional. Bone v. State, supra at 833.  We overrule Ewing=s sole issue on appeal.

The judgment of the trial court is affirmed.

PER CURIAM

January 31, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Wright, J., and

McCall, J., and Hill, J.^[1]

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^[1]John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.