                      COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH

                           NO. 02-12-00322-CR
                           NO. 02-12-00323-CR
                           NO. 02-12-00324-CR
                           NO. 02-12-00325-CR
                           NO. 02-12-00326-CR
                           NO. 02-12-00327-CR
                           NO. 02-12-00328-CR
                           NO. 02-12-00329-CR
                           NO. 02-12-00330-CR
                           NO. 02-12-00331-CR
                           NO. 02-12-00332-CR
                           NO. 02-12-00333-CR


PEDRO DOMINGUEZ                                   APPELLANT

                                    V.

THE STATE OF TEXAS                                    STATE


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    FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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            CONCURRING MEMORANDUM OPINION1

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    1
     See Tex. R. App. P. 47.4.
      As the majority correctly points out, the constitutional effectiveness of

counsel’s trial representation is examined under a two-pronged analysis:

deficient performance and prejudice. Of course, both need not be addressed: ―If

it is easier to dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice, which we expect will often be so, that course should be

followed.‖ Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069

(1984); see Smith v. Robbins, 528 U.S. 259, 285–86, 120 S. Ct. 746, 765 (2000).

However, there are limited circumstances under which prejudice is presumed or

where the proven deficient performance will result in undermining confidence in

the outcome, i.e., prejudice. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068;

42 George E. Dix & John M. Schmolesky, Texas Practice Series: Criminal

Practice & Procedure § 29:78 (3d ed. 2011); cf. Kober v. State, 988 S.W.2d 230,

232–33 (Tex. Crim. App. 1999) (holding ―some possibility‖ that deficient

performance affected proceeding is insufficient to show prejudice).

      In this case, Appellant did not file a motion for new trial raising ineffective

assistance of counsel that would have allowed counsel to explain any trial

strategy upon which his decision may have been based. There is absolutely no

record by which we may determine counsel’s reasons, if any, in advising

Appellant to plead guilty to burglary. An ineffective assistance claim must be

―firmly founded in the record‖ and ―the record must affirmatively demonstrate‖ the

meritorious nature of the claim. Menefield v. State, 363 S.W.3d 591, 592 (Tex.




                                         2
Crim. App. 2012) (citing Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999)).

      Direct appeal frequently is an inadequate vehicle for raising an ineffective

assistance of counsel claim such as Appellant’s because the record is

undeveloped. See Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d at

813. This court’s scrutiny of counsel’s performance must be highly deferential,

and every effort must be made ―to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and to evaluate

the conduct from counsel’s perspective at the time.‖ Strickland, 466 U.S. at 689,

104 S. Ct. at 2065. There is a strong presumption mandated by Strickland in

favor of a determination that counsel’s decision ―might be considered sound trial

strategy.‖ Id.

      An appellate court is not required to indulge in speculation concerning

counsel’s decision-making processes or to imagine reasons why counsel gave

the advice he did.    When the record is silent as to counsel’s reasons for

performing in the manner alleged, we cannot conclude that counsel’s

performance was deficient. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.

Crim. App. 1994); Lopez v. State, 80 S.W.3d 624, 629–30 (Tex. App.—Fort

Worth 2002), aff’d, 108 S.W.3d 293 (Tex. Crim. App. 2003). Thus, I would hold

that Appellant has failed to establish that his counsel’s assistance was

ineffective.




                                        3
      Because the record is absolutely silent regarding counsel’s trial strategy, I

respectfully suggest that to wade into the prejudice stream is premature in this

instance. Counsel seems to have advised his client to plead guilty to a burglary,

which would undermine Appellant’s defense to the eleven aggravated robbery

charges. Indeed, should counsel’s strategy be mistaken or completely absent,

prejudice conceivably could result to Appellant. See, e.g., Florida v. Nixon, 543

U.S. 175, 187, 125 S. Ct. 551, 560 (2004) (suggesting counsel may be ineffective

if he does not sufficiently consult with defendant regarding decision to plead

guilty); Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim. App. 1999) (noting

situations where prejudice presumed); Ex parte Battle, 817 S.W.2d 81, 84 (Tex.

Crim. App. 1991) (on habeas-corpus review, finding deficient performance and

prejudice based on counsel’s incorrect advice during plea-bargain process); Dix

& Schmolesky, supra, at § 29:78 (―Perhaps a defendant shows prejudice in some

situations by demonstrating that counsel’s actions deprived the defendant of an

important procedural opportunity.‖). A determination of prejudice in this appeal

should not be attempted in the absence of a record, which could be provided in a

post-conviction writ of habeas corpus. Based on the seriousness of the charged

offenses and the length of the sentences imposed, I conclude the more cautious

and correct approach would be to overrule Appellant’s issue on the basis of an

inadequate record and thereby a failure to establish deficient representation.

Based on this rationale, I join the judgments affirming the trial court’s judgments.




                                          4
                              LEE GABRIEL
                              JUSTICE

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 30, 2013




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