                                  NO. 07-09-0339-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                    JULY 28, 2011


                               RUFUS SITO NANEZ, III,

                                                                 Appellant
                                            v.

                                THE STATE OF TEXAS,

                                                                 Appellee
                           ___________________________

             FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;

                  NO. 4077; HONORABLE RON ENNS, PRESIDING


                                        Opinion


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      What we have before us is an appeal attacking trial counsel’s performance.

Appellant, Rufus Sito Nanez, III, was convicted on two counts of aggravated sexual

assault. He and his appellate attorney attempt to sway us to believe that trial counsel

provided Nanez ineffective assistance in eighteen different ways.        Whether either

appellant or his attorney read this court’s opinion in Beck v. State, 976 S.W.2d 265, 268

(Tex. App.–Amarillo 1998, pet. ref’d) (especially the last paragraph) is unknown but we
respectfully suggest that they do.        And, we affirm the judgment for the following

reasons.

          First, of the eighteen complaints, none were supported by legal authority. That is,

neither appellant nor his appellate attorney provided us with statutory or case citation

purporting, in any way, to illustrate that the particular conduct of which they complained

was unreasonable or deficient. Omitting such authority alone permits us to deem the

issues inadequately briefed and, therefore, waived. Delijevic v. State, 323 S.W.3d 606,

609 (Tex. App.–Amarillo 2010, no pet.) (holding that the failure to support argument with

applicable authority equates to inadequate briefing and constitutes a waiver of the

issue).

          Second, no evidence appears of record purporting to illustrate the reasons or

motivations, if any, underlying trial counsel’s decisions or actions. This is problematic

because we are to presume that counsel based those decisions and actions on sound

trial strategy.     Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007).

Furthermore, that presumption cannot generally be overcome absent evidence of those

reasons and motives appearing in the record. Ex parte Niswanger, 335 S.W.3d 611,

615 (Tex. Crim. App. 2011). And, none of the examples of allegedly deficient conduct

cited by appellant and his appellate attorney compare to those rare instances of

misconduct for which there can be no legitimate strategy.            Indeed, attacking trial

counsel because he “fail[ed] to address venirepersons by name” falls short of such

unjustifiable misconduct.

          Third, proving ineffective assistance requires more than simply showing some

mistake or default. The complainant must also establish that the default was prejudicial.

                                               2
Cannon v. State, 252 S.W.3d 342, 348-49 (Tex. Crim. App. 2008). Moreover, fulfilling

that burden requires more than simply surmising that the result may have differed if X

had happened. Rather, it is a true burden mandating explanation and development,

and omitting to do so is fatal to the complaint. See Howard v. State, 239 S.W.3d 359,

368 (Tex. App.–San Antonio 2007, pet. ref’d); Callahan v. State, 24 S.W.3d 483, 486

(Tex. App.–Houston [1st Dist.] 2000, pet. ref’d). Appellant and his counsel so failed

here.

        Counsel is not ineffective simply because he did not do that which his accuser

thought he should have done. Nor is he legally deficient simply because some attorney

who enjoys the benefit of hindsight and cool reflection would have taken a different tact.

Indeed, appellate counsel should not only recognize what is required by law but also

use caution when calling someone ineffective. Those before us today should heed that

admonishment when next they think about invoking the theory.               Unfounded and

undeveloped accusations like those uttered at bar needlessly belittle their human target

and do little to serve a client’s interests. It “ain’t” a game folks; it’s real lives we are

dealing with.

        We overrule each issue and affirm the judgment.



                                                 Brian Quinn
                                                 Chief Justice



Publish.




                                             3
