                                 IN THE
                         TENTH COURT OF APPEALS

                               No. 10-08-00188-CR

CLIFFORD BRYAN CASON,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                         From the 220th District Court
                           Hamilton County, Texas
                        Trial Court No. HCCR 07-07484


                         MEMORANDUM OPINION


      A jury found Appellant Clifford Bryan Cason guilty of the state-jail felony

offense of burglary of a building and assessed his punishment at one year’s

confinement and a $5,000 fine. The trial court then suspended the sentence and placed

Cason on community supervision for five years. By one issue, Cason contends that he

did not receive effective assistance of counsel as guaranteed by the United States and

Texas Constitutions. We will affirm.
        To prevail on an ineffective assistance of counsel claim, the familiar Strickland v.

Washington test must be met. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535,

156 L.Ed.2d 471 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

2064, 80 L.Ed.2d 674 (1984)); Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App.

2005) (same). Under Strickland, we must determine: (1) whether counsel’s performance

was deficient, and if so, (2) whether the defense was prejudiced by counsel’s deficient

performance. Wiggins, 539 U.S. at 521, 123 S.Ct. at 2535; Strickland, 466 U.S. at 687, 104

S.Ct. at 2064; Andrews, 159 S.W.3d at 101.

        To establish the first prong of Strickland, the defendant must demonstrate that

counsel’s representation fell below an objective standard of reasonableness. Strickland,

466 U.S. at 687-88, 104 S.Ct. at 2064. In other words, the defendant must prove, by a

preponderance of the evidence, that there is, in fact, no plausible professional reason for

a specific act or omission. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002).

        Appellate review of defense counsel’s representation is highly deferential and

presumes that counsel’s actions fell within the wide range of reasonable and

professional assistance. Id. at 833. Under normal circumstances, the record on direct

appeal will not be sufficient to show that counsel’s representation was so deficient and

so lacking in tactical or strategic decisionmaking as to overcome the presumption that

counsel’s conduct was reasonable and professional. Id. Ineffective assistance of counsel

claims are not built on retrospective speculation; they must “be firmly founded in the

record.”    Id. at 835.   The record must itself affirmatively demonstrate the alleged

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

Cason v. State                                                                          Page 2
Accordingly, trial counsel should ordinarily be afforded an opportunity to explain the

actions taken or not taken, as the case may be, before being condemned as

unprofessional and incompetent. Bone, 77 S.W.3d at 836.

         In this case, Cason argues that his counsel was ineffective for the following:

filing several documents that allegedly provided the State with a preview of the

defense’s strategy; failing to file requests for notice under rule 404(b) or rule 609(f) of

the Texas Rules of Evidence or article 37.07, section 3(g) of the Code of Criminal

Procedure; failing to obtain a discovery order; failing to file even a “boilerplate” motion

in limine; stating during her opening statement that the defense would prove Cason’s

innocence beyond a reasonable doubt despite “no obligation on the defense to prove

anything whatsoever”; failing to make various objections; and calling multiple

witnesses whose testimony allegedly had no defense value but rather strengthened the

State’s case. However, the record on direct appeal is not sufficient to show why counsel

took or did not take any of these particular actions.

         Absent a record revealing trial counsel’s strategy or motivation, Cason has not

defeated the strong presumption that trial counsel’s actions fell within the wide range

of reasonable professional assistance.     See Thompson, 9 S.W.3d at 814.       The more

appropriate vehicle to raise his ineffective assistance of counsel claims is an application

for writ of habeas corpus. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App.

2003).




Cason v. State                                                                       Page 3
        We overrule Cason’s sole issue and affirm the trial court’s judgment.



                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed March 31, 2010
Do not publish
[CR25]




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