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Redmond v. State11/8/2000
ed with the judge on the morning trial commenced. The pre-trial proceedings were not included in the reporter's record.
Both indictments contained allegations of the use of a deadly weapon, making the appellant ineligible for judge-ordered community supervision. Tex. Code. Crim. Proc. Ann. art. 42.12, § 3g (Vernon Supp. 2000). Special issues on the use of a deadly weapon were submitted to the jury in both charges.
To prevail on an ineffective assistance of counsel claim, the appellant must establish that (1) counsel's performance fell below the standards of reasonable competency, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). The appellant must overcome the strong presumption that counsel's actions fall within the wide range of reasonable professional assistance by identifying the acts or omissions of counsel that are alleged to have constituted the ineffective assistance and then affirmatively proving that they fell below the professional norm for reasonableness. Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. McFarland v. State, 845 S.W.2d 824, 500 (Tex. Crim. App. 1992).
Redmond contends trial counsel was ineffective in failing to elect punishment to the jury. The election belongs to Redmond, not to her trial counsel, so his ineffectiveness would lie in not providing sufficient information to make an informed choice, or in failing to properly execute her election. Redmond suggests counsel may have been unaware of the deadly weapon allegations, may not have realized a deadly weapon finding would preclude judge-ordered community supervision, or may have filed the wrong document by mistake. The record provides no hint that counsel mistakenly believed Redmond would be probation-eligible if she went to the judge for punishment. Nothing in the reporter's record indicates that Redmond believed she could be placed on community supervision, or that she elected to have the jury assess punishment but counsel filed the wrong election. Had the jury answered "We do not" to the special issues, no deadly weapon finding would be authorized and Section 3g would not have applied. Such a scenario is remote but not impossible. Furthermore, had the application for community supervision been inadvertently filed, there would be no prejudice to the appellant. One might surrender the opportunity for community supervision upon viewing a venire composed of persons appearing to be less merciful than the presiding judge. Such speculation demonstrates the shortcomings attendant in challenging counsel's performance without the benefit of a hearing directly addressing that issue.
The presumption of reasonable effectiveness cannot ordinarily be overcome absent evidence in the record of the attorney's reasons for his conduct. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). In this appeal, we have no record, usually developed in a motion for new trial hearing or on writ of habeas corpus, explaining counsel's thought processes and trial strategy. Redmond fails to meet the first prong of Strickland. Issue six is overruled.
Issue seven asks, "Was counsel ineffective for failing to support the motions for new trial with an affidavit?" Counsel's attempt to file supporting affidavits came after the time for supplementing motions for new trial had passed. See Tex. R. App. P. 21.4(b). The trial court refused to c
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