
                              NO. 07-09-0339-CR

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL C

                                JULY 28, 2011




                           RUFUS SITO NANEZ, III,


                                   Appellant
                                     v.


                             THE STATE OF TEXAS,


                                    Appellee
                         ___________________________

                FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;

                   NO. 4077; HONORABLE RON ENNS, PRESIDING



                                   Opinion



Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
      What we  have  before  us  is  an  appeal  attacking  trial  counsel's
performance.  Appellant, Rufus Sito Nanez, III, was convicted on two  counts
of aggravated sexual assault.  He and  his  appellate  attorney  attempt  to
sway us to believe that trial counsel provided Nanez ineffective  assistance
in eighteen different ways.  Whether either appellant or his  attorney  read
this court's opinion in Beck v. State,  976  S.W.2d  265,  268  (Tex.  App.-
Amarillo 1998, pet. ref'd) (especially the last paragraph)  is  unknown  but
we respectfully suggest that they do.  And, we affirm the judgment  for  the
following reasons.
      First, of the  eighteen  complaints,  none  were  supported  by  legal
authority. That is, neither appellant nor his  appellate  attorney  provided
us with statutory or case citation purporting, in  any  way,  to  illustrate
that the particular conduct of which they  complained  was  unreasonable  or
deficient.  Omitting such authority alone permits  us  to  deem  the  issues
inadequately briefed  and,  therefore,  waived.   Delijevic  v.  State,  323
S.W.3d 606, 609  (Tex.  App.-Amarillo  2010,  no  pet.)  (holding  that  the
failure to support argument with applicable authority equates to  inadequate
briefing and constitutes a waiver of the issue).
      Second, no evidence appears of record  purporting  to  illustrate  the
reasons or motivations, if any,  underlying  trial  counsel's  decisions  or
actions.  This is problematic because we are to presume that  counsel  based
those decisions and actions on sound trial strategy.   Mata  v.  State,  226
S.W.3d 425, 431 (Tex.  Crim.  App.  2007).   Furthermore,  that  presumption
cannot generally be overcome absent evidence of those  reasons  and  motives
appearing in the record.  Ex parte Niswanger,  335  S.W.3d  611,  615  (Tex.
Crim. App. 2011).  And, none of the examples of allegedly deficient  conduct
cited by  appellant  and  his  appellate  attorney  compare  to  those  rare
instances of misconduct for which  there  can  be  no  legitimate  strategy.
Indeed,  attacking  trial  counsel   because   he   "fail[ed]   to   address
venirepersons by name" falls short of such unjustifiable misconduct.
      Third,  proving  ineffective  assistance  requires  more  than  simply
showing some mistake or default.  The complainant must also  establish  that
the default was prejudicial.
Cannon v. State, 252 S.W.3d 342, 348-49 (Tex. Crim. App.  2008).   Moreover,
fulfilling that burden requires more than simply surmising that  the  result
may have differed if X had happened.  Rather, it is a true burden  mandating
explanation and  development,  and  omitting  to  do  so  is  fatal  to  the
complaint. See Howard v. State, 239 S.W.3d 359, 368 (Tex.  App.-San  Antonio
2007, pet. ref'd); Callahan v. State, 24 S.W.3d 483, 486 (Tex.  App.-Houston
[1st Dist.] 2000, pet. ref'd).  Appellant and his counsel so failed here.
      Counsel is not ineffective simply because he did  not  do  that  which
his accuser thought he should  have  done.   Nor  is  he  legally  deficient
simply because some attorney who enjoys the benefit of  hindsight  and  cool
reflection would have taken a different tact.    Indeed,  appellate  counsel
should not only recognize what is required by law but also use caution  when
calling someone  ineffective.   Those  before  us  today  should  heed  that
admonishment when next they think about invoking the theory.  Unfounded  and
undeveloped accusations like those uttered at bar needlessly belittle  their
human target and do little to serve a  client's  interests.   It  "ain't"  a
game folks; it's real lives we are dealing with.
      We overrule each issue and affirm the judgment.

                                        Brian Quinn
                                        Chief Justice

Publish.
