                                  NO. 07-02-0451-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                 SEPTEMBER 18, 2003

                         ______________________________


                            DALE SWINDALL, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

           FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2000-434197; HONORABLE JOHN FORBIS, JUDGE

                        _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                               MEMORANDUM OPINION


      Following a plea of not guilty, appellant was convicted by a jury of aggravated

sexual assault and punishment was assessed at confinement for life.1 Presenting a sole


      1
       An appeal from this conviction was previously dismissed for want of jurisdiction in
cause number 07-00-0559-CR. However, following his post-conviction application for a
issue, appellant asserts he was denied effective assistance of counsel in violation of the

Sixth Amendment and the Due Process Clause of the Fourteenth Amendment. Based

upon the rationale expressed herein, we affirm.


       Appellant contends he was denied ineffective assistance of counsel. We disagree.

A claim of ineffective assistance of counsel is reviewed under the standard set out in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).2 Under

Strickland, a defendant must establish that (1) counsel’s performance was deficient (i.e.,

fell below an objective standard of reasonableness), and (2) there is a reasonable

probability that but for counsel’s deficient performance, the result of the proceeding would

have been different, a reasonable probability being a probability sufficient to undermine

confidence in the outcome. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Cr.App. 2003);

see also Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986). In other words,

appellant must demonstrate that the deficient performance prejudiced his defense.

Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Cr.App. 2002). Failure to make the required

showing of either deficient performance or sufficient prejudice defeats the ineffectiveness




writ of habeas corpus, the Court of Criminal Appeals granted appellant an out-of-time
appeal.
       2
       The Court of Criminal Appeals has overruled both Ex parte Duffy, 607 S.W.2d 507,
516 (Tex.Cr.App. 1980) and Ex parte Cruz, 739 S.W.2d 53 (Tex.Cr.App. 1987) by its
decision in Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App. 1999).

                                             2
claim. Garcia v. State, 887 S.W.2d 862, 880 (Tex.Cr.App. 1994), cert. denied, 514 U.S.

1021, 115 S.Ct. 1368, 131 L.Ed.2d 223 (1995).


       The adequacy of defense counsel’s assistance is based upon the totality of the

representation rather than by isolated acts or omissions of trial counsel. Id. Although the

constitutional right to counsel ensures the right to reasonably effective counsel, it does not

guarantee errorless counsel whose competency or accuracy of representation is to be

judged by hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Cr.App. 1984); see also

Ex Parte Kunkle, 852 S.W.2d 499, 505 (Tex.Cr.App. 1993). Appellate review of trial

counsel’s representation is highly deferential and presumes that counsel’s conduct fell

within the wide range of reasonable and professional representation. Bone v. State, 77

S.W.3d 828, 833 (Tex.Cr.App. 2002); see also Mallett v. State, 65 S.W.3d 59, 63

(Tex.Cr.App. 2001). Also, any allegation of ineffectiveness must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness.

Thompson v. State, 9 S.W.3d 808, 813 (Tex.Cr.App. 1999).


       Appellant was convicted of sexual assault of a child. He claims counsel was

ineffective in the following acts of omission:


       •      failure to adequately investigate the facts;
       •      failure to seek out and interview potential witnesses;
       •      failure to call witnesses to testify; and




                                              3
       •      failure to present documentary evidence through expert witnesses
              that would have created reasonable doubt.


       Relying on Smith v. State, 894 S.W.2d 876 (Tex.App.–Amarillo 1995, pet. ref’d) and

Winn v. State, 871 S.W.2d 756 (Tex.App.–Corpus Christi 1993, no pet.), appellant

contends trial counsel failed to call an expert witness to testify or present medical records

that he suffered from erectile dysfunction at the time of the alleged offense. He also

complains that no expert testimony was presented that he had Peyronie’s disease and the

effect of it on his ability to function sexually and that he had seen a doctor for that

condition in July 1997. Appellant concludes that trial counsel’s acts of omission were

harmful because expert testimony would have refuted the victim’s testimony.


       Following his conviction, appellant filed a motion for new trial alleging ineffective

assistance of counsel. However, no hearing was held on the motion and it was overruled

by operation of law. Trial counsel should ordinarily be afforded an opportunity to explain

his trial strategy before being denounced as ineffective. Rylander, 101 S.W.3d at 111,

citing Bone, 77 S.W.3d at 836. As the Court of Criminal of Appeals has previously stated,

rarely will the record on direct appeal be sufficient to show that counsel’s conduct was so

deficient as to meet the first prong of Strickland as the “reasonableness of counsel’s

choices often involves facts that do not appear in the appellate record.” Mitchell v. State,

68 S.W.3d 640, 642 (Tex.Cr.App. 2002). An application for a post-conviction writ of a




                                             4
habeas corpus is the more appropriate vehicle to raise and develop ineffective assistance

of counsel claims. Id.


       As the State urges, there is nothing in this record to show counsel’s motives or

strategy in not presenting expert testimony of appellant’s claims of erectile dysfunction and

Peyronie’s disease.      The appellate record is not adequately developed to sustain

appellant’s argument and on the record before us, we cannot determine whether counsel’s

conduct fell below an objective standard of reasonableness. Appellant’s sole issue is

overruled.


       Accordingly, the judgment of the trial court is affirmed.


                                          Don H. Reavis
                                            Justice

Do not publish.




                                             5
