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Garcia v. State4/23/2004
928 S.W.2d at 500.
Appellant's Arguments
Appellant complains that trial counsel was deficient in that he (1) failed to invoke and/or require compliance with the "outcry witness" procedures set forth in Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2003), and allowed multiple witnesses other than Officer Moore to testify as to statements they received from the complaining witness, (2) failed to obtain rulings on pre-trial motions, (3) failed to object to the prosecutor's prejudicial and improper comments during voir dire, (4) permitted prospective jurors to make prejudicial comments during voir dire without requesting a sidebar or other assistance from the trial court so as to mitigate the effect of those comments, (5) did not present a challenge for cause to Venireperson Collins, a juror who stated he would strongly require appellant to testify, (6) did not protest, request explanation or request further examination of Venireperson Medcalf when the judge summarily denied defense counsel's challenge of said juror for cause, (7) did not object to the prosecutor's comments and questions regarding punishment options, enhancement, prior convictions and eligibility for probation, (8) did not object to the prosecutor's reference to hearsay in his opening argument, (9) did not follow up on his initial objection to Officer Moore's testimony as an "outcry" witness or otherwise require compliance with the procedures and safeguards set out in the "outcry" statute, (10) failed to object to the prosecutor's questions to Detective Rich regarding what appellant allegedly told him on the phone about not wanting to return to Plano because he would be arrested and that he wanted to talk to his attorney first, (11) failed to object to the court's charge to the jury on guilt/innocence, (12) failed to call a known witness that could have further corroborated the testimony of the complaining witness's mother regarding the house being full of other people at the time of the claimed incidents, (13) failed to object to the prosecutor's comments during closing argument at the punishment phase regarding appellant's lack of remorse, (14) failed to object or respond to the state's notice of intent to use prior felony DWI for enhancement, and (15) called a witness on behalf of appellant without having first met or interviewed the witness.
Numbers (2), (4), (5), (7), (8), and (10) are largely conclusory, with little or no analysis. Appellant has not presented argument and authorities as required by Texas Rule of Appellate Procedure 38.1(h). We will not consider these complaints in support of appellant's ineffective assistance claim. See Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000). In regards to (1), (6), (12), and (15), there is no evidence in the record of the reasoning behind counsel's actions. As we stated earlier, when the record contains no evidence of the reasoning behind trial counsel's actions, we cannot conclude counsel's performance was deficient. See Bone, 77 S.W.3d at 833-37. We properly defer to the strong presumption that counsel's actions fell within the wide range of reasonable professional assistance. See Jackson, 877 S.W.2d at 771. Appellant has failed in his burden to rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. Id. We previously held that actions referenced in numbers (3), (9), (11), (13) and (14) were either not error or were harmless error. Consequently, appellant cannot satisfy the second Strickland prong and show that, but for counsel's error, there is a reasonable probability the result of the proceeding would have been different. Strickla
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