                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


 MARK NEWELL FERGUSON,                            §
                                                                  No. 08-10-00299-CR
                   Appellant,                     §
                                                                    Appeal from the
 v.                                               §
                                                                   21st District Court
                                                  §
 THE STATE OF TEXAS,                                             of Lee County, Texas
                                                  §
                   Appellee.                                          (TC# 7064)
                                                  §


                                           OPINION

       Mark Ferguson appeals from a jury conviction finding him guilty of assault with a deadly

weapon. Ferguson’s sole issue on appeal asserts that his trial counsel rendered ineffective assistance

by failing to pursue several objections to an adverse ruling. Affirmed.

                                         BACKGROUND

       On September 29, 2009, a grand jury indicted Appellant for intentionally, knowingly, or

recklessly causing bodily injury by assaulting Mr. Steven Lewis Hughes with a vehicle. During a

discussion with another individual, Appellant got involved in an argument with Mr. Hughes. As

Appellant moved toward his vehicle to leave, Mr. Hughes confronted him. As Appellant began

to drive away, he grabbed Mr. Hughes’ shirt through the driver’s window, and dragged him for

some distance down the street.

       Mr. Hughes’ shirt ripped and he fell to the ground. He then threw a spark plug and struck

the rear window of Appellant’s car. Before driving away, Appellant turned the car around and

struck Mr. Hughes with the front of his vehicle. He made another u-turn, and ran Mr. Hughes
over as he was lying in the street. Mr. Hughes sustained numerous injuries, including a broken

eye socket, broken jaw, and damage to both of his legs.

       After pleading not guilty to the charges filed against him and proceeding to trial, a jury

returned a verdict convicting Appellant of the second degree felony offense of aggravated assault

with a deadly weapon, and sentenced him to twenty years’ confinement. Appellant raises one

issue on appeal, asserting that trial counsel rendered ineffective assistance for failing to preserve

error by not obtaining an adverse rulings on several sustained objections made throughout the

course of the trial proceedings.

                                           DISCUSSION

       The proper standard for reviewing claims of ineffective assistance of counsel is the two-

step analysis adopted by the United States Supreme Court in Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 647 (1984). In order to establish ineffective assistance of

counsel, an appellant must prove that (1) his counsel’s performance was deficient and (2) he was

prejudiced by the deficiency. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. If an appellant fails

to satisfy his burden under the first Strickland prong, there is no need to address the second. See

Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999).

       Under the first prong of the Strickland analysis, counsel’s performance is deficient when

it falls below an objective standard of reasonableness. Thompson, 9 S.W.3d at 812. Appellate

review of trial counsel’s conduct is highly deferential and presumes that counsel’s actions fell

within the wide range of reasonable professional assistance. Mallet v. State, 65 S.W.3d 59, 63

(Tex.Crim.App. 2001). The burden of overcoming this presumption falls on the appellant.

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Any allegation of ineffectiveness must be firmly


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rooted and affirmatively demonstrated in the record to overcome this strong presumption.

Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). In

the majority of instances, this task is extremely difficult because the record on direct appeal is

simply undeveloped and cannot adequately reflect the deficiencies of trial counsel’s performance.

Thompson, 9 S.W.3d at 813-14.

       In his sole appellate issue, Appellant contends that trial counsel’s representation was

constitutionally deficient for failure to preserve potentially reversible error related to twenty-eight

objections made throughout trial. As Appellant admits, the objections were sustained by the trial

court. Appellant argues that the representation was deficient, however, because counsel failed to

pursue the objections to an adverse ruling by requesting instructions to disregard, and making

motions for mistrial. Appellant concludes that by failing to take these actions, counsel failed to

preserve errors which could have lead to his conviction being overturned on appeal.

       As is the case in so many claims of ineffective assistance on direct appeal, we do not have

the benefit of a record containing trial counsel’s explanation for not pursuing the objections in

the manner Appellant now argues. As a consequence, we must presume that trial counsel had a

reasonable professional basis for not pursuing the objections, and that he acted within the range

of reasonable professional assistance. Thompson, 9 S.W.3d at 814. Absent a record, our inquiry

on direct appeal is limited to whether the challenged conduct was, “so outrageous that no

competent attorney would have engaged in it.” See Goodspeed v. State, 187 S.W.3d 390, 392

(Tex.Crim.App. 2005).

       As a general rule, a complaint is preserved for appellate review by a valid, specific, and

timely objection, which results in an adverse ruling. See TEX .R.APP .P. 33.1(a)(1); Peralta v.


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State, 338 S.W.3d 598, 609 (Tex.App.--El Paso 2010, no pet.). Because the trial court ruled in

Appellant’s favor by sustaining trial counsel’s objections, there is no further adverse ruling on

which Appellant could base an appellate argument. See TEX .R.APP .P. 33.1(a)(1). On the issue

of counsel’s failure to pursue the objections, it is possible that having obtained favorable rulings

on the objections, counsel choose not to pursue the issues so as to avoid drawing further attention

to the evidence, question, or argument. Whether or not counsel’s decision was optimal, is not for

this Court to determine. We must only ask whether the conduct was “outrageous,” and in this

case there is no basis for such a conclusion. Accordingly, Appellant has failed to establish that

counsel’s performance was deficient under the first prong of the Strickland analysis, and it is

unnecessary to address prejudice. SeeThompson, 9 S.W.3d at 813-14. Issue One is overruled.

                                         CONCLUSION

       Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.



October 31, 2011
                                              CHRISTOPHER ANTCLIFF, Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)




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