Dunn v. State8/19/2004
, opening statements, and closing arguments. Id. at 802. Therefore, regardless of whether Appellant had stipulated to his previous offenses prior to trial, the prior convictions could still be mentioned during voir dire and closing arguments. See id. Finding no prosecutorial misconduct, we overrule Point of Error No. Three.
INEFFECTIVE ASSISTANCE OF COUNSEL
In Point of Error No. Four, Appellant argues that he received ineffective assistance from his trial counsel and original appellate counsel.
Standard of Review
The proper standard for determining claims of ineffective assistance under the Sixth Amendment is the two-step analysis adopted by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex.Crim.App. 1999). Under the first prong, the defendant must show that counsel’s performance was deficient, to the extent that counsel failed to function as the “counsel” guaranteed by the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). The defendant must demonstrate that his attorney’s representation fell below an objective standard of reasonableness under prevailing professional norms. Vasquez v. State, 830 S.W.2d 948, 949 (Tex.Crim.App. 1992). Under the second prong, the defendant must establish that counsel’s deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Jackson, 877 S.W.2d at 771. Prejudice is established by a showing that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; Jackson, 877 S.W.2d at 771; Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; Jackson, 877 S.W.2d at 771.
When we review a claim of ineffective assistance of trial counsel, we must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable, professional assistance and the appellant must overcome the presumption that the challenged conduct can be considered sound trial strategy. Jackson, 877 S.W.2d at 771; Calderon v. State, 950 S.W.2d 121, 126 (Tex.App.--El Paso 1997, no pet.). An appellant challenging trial counsel’s performance therefore faces a difficult burden and “a substantial risk of failure.” See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Allegations of ineffectiveness of counsel must be firmly founded in the record. Hawkins v. State, 660 S.W.2d 65, 75 (Tex.Crim.App. 1983), cert. denied, Hawkins v. Collins, 506 U.S. 1089, 113 S.Ct. 1147, 122 L.Ed.2d 498 (1993); Calderon, 950 S.W.2d at 126. Under the Strickland test, the appellant bears the burden of proving ineffective assistance by a preponderance of the evidence. Jackson, 877 S.W.2d at 771; Calderon, 950 S.W.2d at 126.
Trial Counsel’s Lack of Preparation
First, Appellant alleges that trial counsel did not properly prepare for trial because he failed to research felony DWI law and he relied entirely on the police report for the testimony of witness Veronica Montes. Appellant contends that counsel’s actions were not within the realm of reasonable trial strategy because he was not aware of the option of stipulating until informed by the prosecutor.
It is evident that a criminal defense lawyer must have a firm command of the facts of the case as well as governing law before he can render reasonably effective assistance of cou
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