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Garcia v. State4/23/2004
hat being an alcoholic is not a crime; but driving while intoxicated is. See Tex. Pen. Code Ann. §§ 49.04, 49.09 (Vernon Supp. 2003). Appellant was convicted of at least two misdemeanor DWI's before he received his felony DWI conviction. In other words, appellant demonstrated "a pronounced and prolonged inability to bring conduct within the social norms prescribed by the criminal laws of the State of Texas," which is precisely the reason for habitual offender statutes. Lackey v. State, 881 S.W.2d 418, 422 (Tex. App.-Dallas 1994, pet. ref'd). And the enhanced punishment attaches to the defendant based on his status as a repeat or habitual offender without regard to the offense for which he stands convicted. Branch v. State, 833 S.W.2d 242, 246 (Tex. App.-Dallas 1992, pet. ref'd). Further, habitual offender statutes have long been upheld as constitutional. Armendariz v. State, 529 S.W.2d 525, 527-28 (Tex. Crim. App. 1975). We hold that appellant has failed to demonstrate that the habitual offender statute constitutes cruel and unusual punishment as applied to his specific circumstances. We overrule issue ten.
INEFFECTIVE ASSISTANCE OF COUNSEL
Standard of Review
In his eleventh issue, appellant contends that he did not receive a fair trial due to the ineffective assistance of his trial counsel. The standard for reviewing claims of ineffective assistance of counsel is articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In Strickland, the court held that the appellant must prove that counsel's representation so undermined the "proper functioning of the adversarial process that the trial cannot be relied on having produced a just result." Id. at 686; McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Strickland established a two part test. First, appellant must prove that counsel's performance was deficient. Strickland, 466 U.S. at 687. In order to do so, appellant must demonstrate that counsel's performance fell below an objective standard of reasonableness, as judged on the facts of a particular case and viewed at the time of counsel's conduct. Id. at 688-90. In evaluating this standard, counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Appellant has the burden to overcome this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). An appellate court may not reverse a conviction on ineffective assistance of counsel grounds when counsel's actions or omissions may have been based on tactical decisions, but the record contains no specific explanations for counsel's decisions. See Bone v. State, 77 S.W.3d 828, 833-37 (Tex. Crim. App. 2002).
Second, Strickland requires appellant to show that counsel's performance prejudiced his defense at trial. Strickland, 466 U.S. at 692. "It is not enough for the Appellant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Rather, he must show that there is a reasonable probability that the result of the proceeding would have been different but for the errors made by counsel. Id. at 694. "The question is whether there is a reasonable probability that absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. As a result, " ny allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland,
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