                              NO. 12-09-00335-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS
EDDRICK KEITH LATSON,
APPELLANT                                        '   APPEAL FROM THE 217TH

V.                                               '   JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,                              '   ANGELINA COUNTY, TEXAS
APPELLEE
                              MEMORANDUM OPINION
       Eddrick Keith Latson appeals his conviction for injury to a child, for which he
was sentenced to imprisonment for ten years. In one issue, Appellant contends that he
received ineffective assistance of counsel during his trial on punishment. We affirm.

                                      BACKGROUND
       Appellant was charged by indictment with injury to a child. Appellant pleaded
Aguilty,@ and the matter proceeded to a bench trial on punishment. During the trial on
punishment, Appellant’s counsel declined to present evidence, but merely called to the
court is the attention absence from the presentence investigation report of any notation
concerning Appellant’s previous cooperation with the State.
       At the conclusion of the trial on punishment, the trial court sentenced Appellant to
imprisonment for ten years. This appeal followed.

                         INEFFECTIVE ASSISTANCE OF COUNSEL
       In his sole issue, Appellant contends that he received ineffective assistance of
counsel at his trial on punishment. Specifically, Appellant argues that his trial counsel
was ineffective for his failure to present evidence in mitigation of punishment.
       Claims of ineffective assistance of counsel are evaluated under the two step
analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 674 (1984). The first step requires the appellant to demonstrate that trial counsel=s
representation fell below an objective standard of reasonableness under prevailing
professional norms. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. To satisfy this
step, the appellant must identify the acts or omissions of counsel alleged to be ineffective
assistance and affirmatively prove that they fell below the professional norm of
reasonableness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).
The reviewing court will not find ineffectiveness by isolating any portion of trial
counsel=s representation, but will judge the claim based on the totality of the
representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
        To satisfy the Strickland standard, the appellant is also required to show prejudice
from the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770,
772 (Tex. Crim. App. 1999). To establish prejudice, an appellant must prove that but for
counsel=s deficient performance, the result of the proceeding would have been different.
See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
        In any case considering the issue of ineffective assistance of counsel, we begin
with the strong presumption that counsel was effective. See Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994). We must presume counsel=s actions and
decisions were reasonably professional and were motivated by sound trial strategy. See
id.   Appellant has the burden of rebutting this presumption by presenting evidence
illustrating why his trial counsel did what he did. See id. Appellant cannot meet this
burden if the record does not affirmatively support the claim. See Jackson v. State, 973
S.W.2d 954, 955 (Tex. Crim. App. 1998) (inadequate record on direct appeal to evaluate
whether trial counsel provided ineffective assistance); Phetvongkham v. State, 841
S.W.2d 928, 932 (Tex. App.BCorpus Christi 1992, pet. ref=d, untimely filed) (inadequate
record to evaluate ineffective assistance claim); see also Beck v. State, 976 S.W.2d 265,
266 (Tex. App.BAmarillo 1998, pet. ref=d) (inadequate record for ineffective assistance
claim, citing numerous other cases with inadequate records to support ineffective
assistance claim). A record that specifically focuses on the conduct of trial counsel is
necessary for a proper evaluation of an ineffectiveness claim. See Kemp v. State, 892
S.W.2d 112, 115 (Tex. App.BHouston [1st Dist.] 1994, pet. ref=d).
        Appellant=s burden on appeal is well established. See Saenzpardo v. State, No.
05-03-01518-CR, 2005 WL 941339, at *1 (Tex. App.BDallas 2005, no pet.) (op., not
designated for publication). Before being condemned as unprofessional and incompetent,
defense counsel should be given an opportunity to explain his or her actions. See Bone v.
State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Thus, absent a properly developed
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record, an ineffective assistance claim must usually be denied as speculative, and, further,
such a claim cannot be built upon retrospective speculation. Id. at 835.
       Here, Appellant sets forth in his brief that his attorney=s performance at trial fell
below the professional norm because he declined to present evidence at Appellant’s trial
on punishment concerning Appellant’s background, social history, employment,
rehabilitation measures, or suitability for probation. Appellant further contends that his
trial counsel failed to offer evidence in mitigation of Appellant’s criminal history. Yet,
the record before us is silent about trial counsel=s strategy or why he declined to present
such evidence or what the substance of this evidence that allegedly should have been
presented would have been.        Normally, a silent record cannot defeat the strong
presumption of effective assistance of counsel. See Thompson v. State, 9 S.W.3d 808,
813B14 (Tex. Crim. App. 1999); but see Andrews v. State, 159 S.W.3d 98, 102B03 (Tex.
Crim. App. 2005) (reversing a conviction Ain a rare case@ on the basis of ineffective
assistance of counsel when trial counsel did not object to a misstatement of law by the
prosecutor during argument).
       In Andrews, the same prosecutor who filed a motion to cumulate the sentences in
four counts of sexual abuse later argued to the jury, AYou give him 20 years in each case,
it=s still just 20 years. It=s still not 80. You can give different amounts if you want. You
can give 20, 10, 10, five, it=s still just 20.@ Id. at 100. The appellant=s trial counsel did
not object to the prosecutor=s misstatement of the law. Id. The trial court ultimately
granted the State=s motion to cumulate the sentences and imposed a combined prison
sentence of seventy-eight years. Id. The court concluded that the argument left the jury
with the incorrect impression that the appellant=s sentences could not be stacked and that
the appellant would serve no more than twenty years in prison for all four counts. Id. at
103. Therefore, the court held that, under the Aextremely unusual circumstances of [the]
case,@ the record contained all of the information it needed to conclude that there could be
Ano reasonable trial strategy for failing to object@ to the prosecutor=s misstatement of the
law. Id.
       The Aextremely unusual circumstances@ present in Andrews are not present in the
case at hand. Failing to object to a misstatement of the law that is detrimental to one=s
client when the harm is so clearly presented by the record on appeal is quite different
from determining what evidence to present or not present as a matter of trial strategy.
Cf. Saenzpardo, 2005 WL 941339, at *2; see Nabors v. State, No 12-00-00371-CR, 2002
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WL 1362470, at *7 (Tex. App.–Tyler June 21, 2002, pet. ref’d) (not designated for
publication) (no record from which appellate court could determine whether counsel
acted in reasonably professional manner in not calling any witnesses to mitigate
punishment). Counsel=s reasons in Andrews, if any, were unnecessary to resolve the
ineffective assistance of counsel claim. See Berry v. State, No. 05-04-01161-CR, 2005
WL 1515512, at *3 (Tex. App.BDallas 2005, no pet.).
       Having reviewed the record in the instant case, we conclude that the facts before
us are distinguishable from the facts in Andrews. Thus, we decline to hold that the record
before us contains all of the information needed for us to conclude that there could be no
reasonable trial strategy for not presenting mitigating evidence during Appellant’s trial on
punishment. Therefore, we hold that Appellant has not met the first prong of Strickland
because the record does not contain evidence concerning Appellant=s trial counsel=s
reasons for choosing the course he did. As a result, Appellant cannot overcome the
strong presumption that his counsel performed effectively. Appellant=s sole issue is
overruled.
                                       DISPOSITION
       Having overruled Appellant=s sole issue, we affirm the trial court=s judgment.

                                                                JAMES T. WORTHEN
                                                                    Chief Justice


Opinion delivered June 30, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                   (DO NOT PUBLISH)




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