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Otis Clement Alcorn, Jr. v. State ( 2004 )


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  • Opinion issued December 23, 2004

                                                        







      In The

    Court of Appeals

    For The

    First District of Texas




      NO. 01-03-01323-CR




    OTIS CLEMENT ALCORN, JR., Appellant


    V.


    THE STATE OF TEXAS, Appellee




    On Appeal from the 56th District Court

    Galveston County, Texas

    Trial Court Cause No. 02CR0557  



     

    MEMORANDUM OPINION

              Appellant, Otis Clement Alcorn, Jr., pleaded not guilty to two charges of aggravated sexual assault of a child. When the State rested its case, the trial court directed a verdict of not guilty as to one of the charges. After trial on the remaining charge, the jury found appellant guilty and assessed punishment at 10 years in prison. In one issue, appellant contends that he was denied effective assistance of counsel during the trial’s punishment phase. Specifically, appellant complains that his trial counsel failed to request a hearing outside the jury’s presence before evidence of an extraneous offense was heard. We affirm.

    BACKGROUND

              During the punishment phase of the trial, the State elicited testimony from another child regarding an extraneous offense. Appellant’s trial counsel did not request that a hearing be held outside the presence of the jury. DISCUSSION

              The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Appellant must show that (1) counsel’s performance was so deficient that he was not functioning as acceptable counsel under the sixth amendment and (2) but for the counsel’s error, the result of the proceedings would have been different. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). It is the defendant’s burden to prove ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gamble, 916 S.W.2d at 93. Defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 813; Gamble, 916 S.W.2d at 93.

              Appellant asserts that he was denied effective assistance of counsel during the punishment phase of his trial because his trial counsel made no request for a hearing outside the jury’s presence before the State elicited testimony from another child regarding an extraneous offense.

              The record is silent as to why appellant’s trial counsel did not request a hearing. See Gamble, 916 S.W.2d at 93. To find that appellant has met his burden to overcome the presumption that the challenged action might be sound trial strategy—and was, instead, ineffective assistance—would call for speculation, which we will not do. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.1994); Gamble, 916 S.W.2d at 93. Appellant’s sole issue is overruled.

                                                         CONCLUSION

              We affirm the judgment of the trial court. 

     

                                                                 Sam Nuchia

                                                                 Justice


    Panel consists of Justices Nuchia, Hanks, and Higley.


    Do not publish. Tex. R. App. P. 47.2(b).