Affirmed and Memorandum Opinion filed January 8, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00934-CR

                 KENTRICK TAMARKUS JONES, Appellant

                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 405th District Court
                           Galveston County, Texas
                       Trial Court Cause No. 12CR1099

                  MEMORANDUM                       OPINION


      Pursuant to a plea agreement, appellant Kentrick Tamarkus Jones entered a
plea of “guilty” to attempted aggravated assault with a deadly weapon. The trial
court deferred adjudicating guilt and placed appellant on community supervision
for a period of five years. Subsequently, the State filed a motion to adjudicate guilt.
A hearing was held and appellant pled “true” to all of the State’s allegations. The
trial court found all allegations to be true, adjudicated appellant’s guilt, and
sentenced appellant to confinement in the Institutional Division of the Texas
Department of Criminal Justice for eight years. Appellant filed a timely notice of
appeal. In his sole issue on appeal, appellant asserts he received ineffective
assistance of counsel at the hearing on the motion to adjudicate. We affirm.

                                 STANDARD OF REVIEW

      To prevail on an ineffective-assistance claim, a defendant must prove (1)
counsel’s representation fell below the objective standard of reasonableness, and
(2) there is a reasonable probability that but for counsel’s deficiency the result of
the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
687, 694 (1984); see Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App.
1986) (applying Strickland standard to ineffective-assistance claims under the
Texas Constitution).

      In considering an ineffective-assistance claim, we indulge a strong
presumption that counsel’s actions fell within the wide range of reasonable
professional behavior and were motivated by sound trial strategy. Strickland, 466
U.S. at 689; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To
overcome this presumption, an appellant’s claim of ineffective assistance of
counsel must be firmly demonstrated in the record. Thompson, 9 S.W.3d at 814. In
most cases, direct appeal is an inadequate vehicle for raising such a claim because
the record is generally undeveloped and cannot adequately reflect the motives
behind trial counsel’s actions. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex.
Crim. App. 2003); Thompson, 9 S.W.3d at 813–14. When the record is silent
regarding trial counsel’s strategy, we will not find deficient performance unless the
challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

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      A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Instead, we
“review the totality of the representation and the circumstances of each case
without the benefit of hindsight.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.
App. 2011).

                                         ANALYSIS

      The complainant in the underlying offense was appellant’s wife, Gaylin
Jones. The indictment to which appellant pled “guilty” alleged that he “[threw]
gasoline on the said Gaylin Jones and attempted to use a lighter to ignite the
gasoline, which amounted to more than mere preparation that tended but failed to
effect the commission of the offense intended.” Attached to appellant’s appellate
brief is an affidavit of nonprosecution signed by Gaylin Jones and a handwritten
statement by Anthony Phillips, a neighbor of the Joneses. Appellant asserts trial
counsel was ineffective for failing to seek admission of these documents into
evidence at the hearing. He also asserts trial counsel’s failure to have these
witnesses testify constituted ineffective assistance.

      The affidavit and the handwritten statement are not part of the record on
appeal and therefore cannot be considered. As to counsel’s failure to call Phillips
or Gaylin Jones to testify, the record is silent regarding counsel’s strategy. Thus,
we cannot hold counsel’s performance deficient unless it was so outrageous that no
competent attorney would have engaged in it. Goodspeed, 187 S.W.3d at 392.
Appellant’s argument assumes the testimony of these individuals would have been
consistent with their written statements, but we cannot speculate as to what their
testimony would have been. On this record, we cannot say that counsel’s alleged
acts or omissions fall outside the wide range of reasonable professional behavior.

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Accordingly, we conclude that appellant has failed to satisfy the first Strickland
prong.

      We therefore overrule appellant’s sole issue and affirm the trial court’s
judgment.



                                      /s/       Kem Thompson Frost
                                                Chief Justice




Panel consists of Chief Justice Frost and Justices Christopher and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).




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