Everett Lee Lauderdale v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-363-CR
EVERETT LEE LAUDERDALE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Everett Lee Lauderdale appeals his eight-year sentence for
possession with intent to deliver a controlled substance, namely cocaine, of four
grams or more, but less than 200 grams. In a single point, Lauderdale claims
that he received ineffective assistance of counsel. We will affirm.
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See Tex. R. App. P. 47.4.
II. FACTUAL & PROCEDURAL BACKGROUND
Lauderdale entered an open plea of guilty, and the trial court ordered that
a presentence investigation report (PSI) be prepared and set a hearing on
punishment. At the punishment hearing, the defense called Lauderdale’s father-
in-law and wife to testify. Both testified that although Lauderdale had problems
with drugs in the past, he was trying to clean up and deserved a second chance.
Lauderdale’s wife testified on cross-examination that Lauderdale had been
arrested in Arkansas once before for a drug-related offense but that he had never
gone to prison.2
The defense recommended community supervision. The trial court
sentenced Lauderdale to eight years’ confinement.
Notice of appeal was timely filed. Counsel for Lauderdale filed a motion for
new trial, arguing that the verdict was contrary to the law and the evidence.
III. EFFECTIVE ASSISTANCE OF COUNSEL
In his sole point, Lauderdale claims that he did not receive effective
assistance of counsel as guaranteed by the Sixth Amendment because his trial
counsel failed to discover, investigate, and prepare against the unadjudicated
offense that the State cross-examined his wife about during the punishment
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The PSI also included this prior unadjudicated offense. The trial court did
not review the PSI but placed the original under seal in the clerk’s file at the close
of the punishment hearing.
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hearing. Specifically, he contends that trial counsel failed to request, under
article 37.07, section (3)(g) of the Texas Code of Criminal Procedure, that the
State provide notice of intent to offer evidence of extraneous crimes or bad acts.
A. Standard of Review
We apply a two-pronged test to ineffective assistance of counsel claims.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984);
Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State,
65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808,
812 (Tex. Crim. App. 1999). To establish ineffective assistance of counsel, an
appellant must show by a preponderance of the evidence that his counsel’s
representation fell below the standard of prevailing professional norms and that
there is a reasonable probability that, but for counsel’s deficiency, the result of
the trial would have been different. Strickland, 466 U.S. at 687, 104 S. Ct. at
2064; Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 62–63; Thompson, 9
S.W.3d at 812; Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App.
1999). There is no requirement that an appellate court approach the two-
pronged inquiry of Strickland in any particular order or even address both
components of the inquiry if the defendant makes an insufficient showing on one
component. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
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.
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Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance was
reasonable under all the circumstances and prevailing professional norms at the
time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.
Review of counsel’s representation is highly deferential, and the reviewing court
indulges a strong presumption that counsel’s conduct fell within a wide range of
reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at
63. A reviewing court will rarely be in a position on direct appeal to fairly
evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at
813–14. “In the majority of cases, the record on direct appeal is undeveloped
and cannot adequately reflect the motives behind trial counsel’s actions.”
Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the
presumption of reasonable professional assistance, “any allegation of
ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting Thompson, 9
S.W.3d at 813). It is not appropriate for an appellate court to simply infer
ineffective assistance based upon unclear portions of the record. Mata v. State,
226 S.W.3d 425, 432 (Tex. Crim. App. 2007).
B. Record is Insufficient to Establish Ineffectiveness
Here, although the record does not include a request by Lauderdale’s
counsel for the State to provide notice of its intent to offer evidence of extraneous
crimes or bad acts, the PSI refers to the unadjudicated offense that the State
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questioned Lauderdale’s wife about during cross-examination. It is evident from
the record that defense counsel received the PSI prior to the sentencing hearing
and knew its contents. During closing arguments at the punishment hearing,
defense counsel stated, “Mr. Lauderdale knows that he’s made some mistakes. .
. . He started using drugs in Arkansas, got involved with gangs. It’s all in the
[PSI].”
Moreover, the record is silent as to trial counsel’s trial strategy in calling
Lauderdale’s wife to testify and as to his strategy and methods of discovering,
investigating, and preparing for the punishment hearing. Lauderdale did not
complain of ineffective assistance of counsel in his motion for new trial, nor does
there appear to have been a hearing on his motion for new trial.
Generally, a silent record that 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 (Tex. Crim. App. 2003); Edwards v.
State, 280 S.W.3d 441, 445 (Tex. App.––Fort Worth 2009, pet. ref=d). Because
the record is silent as to defense counsel’s strategy and methods used in
discovering and preparing for the complained-of unadjudicated offense and
because the claim of ineffectiveness is not firmly founded in the record, we must
presume that trial counsel rendered reasonable professional assistance. See
Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14. Consequently, we
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hold that Lauderdale has not satisfied the first Strickland prong, and we overrule
his sole point.
IV. CONCLUSION
Having overruled Lauderdale’s sole point, we affirm the trial court’s
judgment.
SUE WALKER
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 9, 2010
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