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                                 MEMORANDUM OPINION

                                         No. 04-09-00646-CR

                                       Averin A. WOODARD,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                      From the 226th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2008-CR-6258
                               Honorable Sid L. Harle, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: October 20, 2010

AFFIRMED

           Following a jury trial, appellant Averin A. Woodard was convicted of felony assault-family

violence second (habitual). After Woodard pled true to two felony enhancements, the trial court

sentenced him to twenty-five years confinement. On appeal, Woodard contends he received

ineffective assistance of counsel. We affirm the trial court’s judgment.
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                                           BACKGROUND

       Woodard and Michelle White were married and lived together in a house owned by White’s

grandmother. On April 5, 2008, Officer Ramsey Garcia of the San Antonio Police Department was

dispatched to the house to investigate a report of family violence. When he arrived at the house, he

met White, whose face and clothes were bloody. White and her grandmother, Ada Mae Anthony,

were the only adults in the house when the officer arrived. Officer Garcia took statements from each

woman. Both White and Anthony told Officer Garcia that Woodard hit White in the face. Officer

Garcia called a police helicopter to search the area for Woodard. Meanwhile, White was taken to

the hospital. Woodard was ultimately arrested and charged with felony assault-family violence

second (habitual).

       At trial, White testified she married Woodard in mid-March 2008, and they moved into the

house at the end of the month. According to White, on April 5, 2008, she and Woodard had an

altercation in which Woodard struck her above the left eye. White testified the argument was the

result of a phone call to White from a male friend. Woodard answered the phone, became jealous,

and accused White of cheating on him. When White attempted to walk away, Woodard hit her once

above the left eye with his fist. White lost her eyesight as blood ran down her face. She tried to call

911 on her cell phone, but Woodard wrestled the phone away from her. Her grandmother was in the

room and hit Woodard with her cane. Woodard then ran out of the house. White called 911, and

police officers arrived at the house. She went to the hospital and received nine stitches above her

eye. At the time of the assault, White was two months pregnant with Woodard’s baby, but she

suffered a miscarriage a week and a half later.




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        Anthony also testified at trial. Anthony testified she saw Woodard hit White, but she was

unable to identify him at trial. Anthony stated she was three or four feet away during the incident,

and she hit Woodard with her cane when he tried to take away the phone away from White. Anthony

testified she had received corneal transplants several years before the incident, but her vision did not

require any corrective lenses.

        After the guilt/innocence phase of the trial, but before the punishment phase, Woodard’s

attorney filed a motion to withdraw, which was granted. The trial court appointed another attorney

to represent Woodard at the punishment phase. As noted above, Woodard was convicted. He then

perfected this appeal.

                              INEFFECTIVE ASSISTANCE OF COUNSEL

        Woodard contends he received ineffective assistance of counsel when his trial attorney failed

to: (1) raise issues of sanity and competence, (2) object to evidence of White’s miscarriage, (3)

object to testimony that White visited Woodard in jail, and (4) object to testimony that Woodard was

previously incarcerated.

        To prevail on an ineffective assistance of counsel claim, an appellant must show (1) deficient

performance by trial counsel, and (2) prejudice arising from the deficient performance. Strickland

v. Washington, 466 U.S. 668, 688 (1984); Garza v. State, 213 S.W.3d 338, 347 (Tex. Crim. App.

2007). In order to establish counsel’s performance was deficient, an appellant must prove by a

preponderance of evidence that his counsel’s representation fell below an objective standard of

professional norms. Strickland, 466 U.S. at 688; Garza, 213 S.W.3d at 347–48. Finally, to establish

the defense was prejudiced, an appellant must show there is a reasonable probability that but for trial

counsel’s errors, the outcome of the trial would have been different. Mitchell v. State, 68 S.W.3d


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640, 642 (Tex. Crim. App. 2002); Ruiz v. State, 293 S.W.3d 685, 690 (Tex. App.—San Antonio

2009, pet. ref’d).

        We must presume trial counsel provided effective assistance. Mallett v. State, 65 S.W.3d 59,

63 (Tex. Crim. App. 2001). There is a strong presumption that trial counsel’s decisions and actions

were motivated by sound trial strategy. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.

2005). To overcome this presumption, an appellant must establish counsel’s ineffectiveness is

“firmly founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.1999). Rarely will a

reviewing court be able to validate an ineffective assistance of counsel claim on direct appeal

because the record is generally undeveloped. Id. Thus, a substantial risk of failure accompanies an

appellant’s claim of ineffective assistance of counsel on direct appeal. Id. at 813–14.

        Counsel’s conduct is reviewed with great deference, especially where counsel’s reasons for

failing to do something do not appear in the record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.

Crim. App. 2005). Trial counsel should ordinarily be afforded an opportunity to explain his actions

before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.

2003). Absent such an opportunity, a reviewing court cannot speculate that counsel’s performance

was deficient. Ruiz, 293 S.W.3d at 690–91. Rather, if the record is silent as to the reasons behind

counsel’s actions or decisions, the presumption of effectiveness is sufficient to deny relief. Id.

(citing Rylander, 101 S.W.3d at 110–11). Trial counsel’s performance will be deemed sufficient if

any strategy can be ascribed to his actions or decisions, and his performance will be found deficient

only if “the conduct was so outrageous that no competent attorney would have engaged in it.”

Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).


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                                    Insanity and Incompetence

       Woodard first contends he received ineffective assistance of counsel because his trial attorney

failed to raise issues of sanity and competence. There is no evidence in the record of counsel’s trial

strategy with regard to Woodard’s mental condition. And, in fact, there is little evidence in the

record to suggest Woodard suffered from insanity or incompetence. Woodard points to information

in a “pro se jailhouse lawyer” pleading, which he filed. However, the statements in that document

were self-serving and unsupported by evidence, and were strongly contested by the State.

       Woodard also points to a portion of the charge conference where he indicated having

problems understanding the range of punishment. However, the record reflects the range of

punishment was previously explained to Woodard, and he acknowledged he understood. Woodard

claimed he had trouble remembering what he had been previously told regarding the range of

punishment. Yet, these statements do not suggest Woodard was insane or incompetent, and

therefore, Woodard has not presented evidence “firmly rooted in the record” that would cause this

court to find trial counsel constitutionally ineffective. See McFarland v. State, 928 S.W.2d. 482, 500

(Tex. Crim. App. 1996). Given the record, we hold counsel’s failure to raise the issues of sanity and

competency was not outside objective professional norms, see Garza, 213 S.W.3d at 347–48, and

was not so outrageous that no competent attorney would have made the same decision. See Andrews,

159 S.W.3d at 101. Accordingly, we hold Woodard has failed to establish his trial counsel’s

performance was deficient. See Strickland, 466 U.S. at 688; Garza, 213 S.W.3d at 347.




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                                         Failure to Object

       Woodard also contends his trial counsel should have objected to evidence that White suffered

a miscarriage approximately a week after the assault. The record on appeal is silent as to why

Woodard’s trial counsel failed to object to the miscarriage evidence, and trial counsel was not

afforded an opportunity to explain his actions. Absent an opportunity to explain, this court will not

presume counsel’s performance was deficient because trial counsel’s performance is deemed

sufficient if any strategy can be ascribed to his actions or decisions. Ruiz, 293 S.W.3d at 690–91;

Andrews, 159 S.W.3d at 101; Rylander, 101 S.W.3d at 111. Woodard’s counsel may not have

wanted to bring undue attention to the evidence by objecting. Because the record is silent as to the

reasons behind counsel’s decisions or actions, and because Woodard has not presented evidence to

rebut the presumption of effectiveness, his ineffective assistance of counsel claim based on the

failure to object to the miscarriage evidence is without merit. See Strickland, 466 U.S. at 688;

Garza, 213 S.W.3d at 347.

       Woodard also contends he received ineffective assistance of counsel because his trial attorney

failed to object to testimony that White visited Woodard in jail after the incident and that Woodard

was previously incarcerated. Again, the appellate record is silent as to why Woodard’s trial counsel

failed to object to this testimony, and again we must presume effectiveness. See Ruiz, 293 S.W.3d

at 690–91. As with the miscarriage testimony, trial counsel may have chosen not to object to

White’s testimony regarding Woodard’s previous incarceration to avoid bringing more attention to

it, and counsel might have considered the evidence regarding White’s post-assault visit to Woodard

a benefit to the defense. Woodard has, therefore, failed to show there is evidence in the record to




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rebut the presumption of effectiveness, so his claim lacks merit. See Strickland, 466 U.S. at 688;

Garza, 213 S.W.3d at 347.

        Finally, even if trial counsel was ineffective for any of the reasons asserted by Woodard, he

has failed to establish his defense suffered any prejudice as a result of counsel’s alleged failures, i.e.,

that there is a reasonable probability that but for the alleged error, the outcome of the trial would

have been different. See Strickland, 466 U.S. at 688; Mitchell, 69 S.W.3d at 642; Ruiz, 293 S.W.3d

at 690. When reviewing an ineffective assistance claim, “[a]n appellate court looks to the totality

of the representation and the particular circumstances of each case.” Thompson, 9 S.W.3d at 813.

In this case, there was clear testimony that Woodard assaulted White, justifying his conviction.

Because Woodard failed to establish prejudice to his defense, his claim of ineffective assistance of

counsel must be denied. See Strickland, 466 U.S. at 688; Garza, 213 S.W.3d at 347.

                                             CONCLUSION

        We overrule Woodard’s point of error and affirm the trial court’s judgment.



                                                          Marialyn Barnard, Justice

Do Not Publish




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