                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-08-00043-CR

DAVID CALDWELL,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 13th District Court
                             Navarro County, Texas
                              Trial Court No. 31,449


                          MEMORANDUM OPINION


      In an open plea to the trial court, David Caldwell pleaded guilty to delivery of a

controlled substance in an amount less than one gram in a drug free zone and pleaded

true to an enhancement paragraph. The trial court ordered a pre-sentence investigation.

After a punishment hearing, the trial court sentenced Caldwell to twelve years in

prison. In one point of error, Caldwell contends that he received ineffective assistance

of counsel at both the guilty plea and punishment hearings. We affirm.
                                    STANDARDS OF REVIEW

        To prove ineffective assistance, an appellant must show that: (1) counsel’s

performance was deficient; and (2) the defense was prejudiced by counsel’s deficient

performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.

Ed. 2d 674 (1984); see also Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535, 156 L.

Ed. 2d 471 (2003). The appellant must prove, by a preponderance of the evidence, that

there is no plausible professional reason for a specific act or omission. Bone v. State, 77

S.W.3d 828, 836 (Tex. Crim. App. 2002). There is “a strong presumption that counsel’s

conduct fell within a wide range of reasonable representation.” Salinas v. State, 163

S.W.3d 734, 740 (Tex. Crim. App. 2005). “[A]ny allegation of ineffectiveness must be

firmly founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).1

                                              ANALYSIS

         Caldwell maintains that trial counsel rendered ineffective assistance by failing

to: (1) conduct discovery, including filing a Brady motion; and (2) call witnesses, other

than Caldwell, at the punishment hearing.

         We first note that, at the guilty plea hearing, the trial court asked Caldwell

whether he was satisfied with counsel’s representation, to which he replied, “Yes, sir.”

Moreover, Caldwell did not file a motion for new trial alleging ineffective assistance.

The record is silent as to any reasons explaining trial counsel’s actions and we will not

1       Caldwell maintains that he is not required to satisfy Strickland regarding ineffective assistance at
the punishment hearing. However, Strickland applies to the punishment phase of a noncapital case.
Loredo v. State, 157 S.W.3d 26, 29 (Tex. App.—Waco 2004, pet. ref’d) (citing Hernandez v. State, 988 S.W.2d
770, 772 (Tex. Crim. App. 1999)); see Mata v. State, 226 S.W.3d 425 (Tex. Crim. App. 2007).


Caldwell v. State                                                                                    Page 2
so speculate. See Thompson, 9 S.W.3d at 814. Absent a record revealing trial counsel’s

strategy or motivation, Caldwell has not defeated the strong presumption that trial

counsel’s actions fell within the wide range of reasonable professional assistance. See id.

His ineffective assistance claim is better raised through an application for a writ of

habeas corpus. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see also

Bone, 77 S.W.3d at 837 n.30. We overrule Caldwell’s sole point of error and affirm the

trial court’s judgment.



                                                       FELIPE REYNA
                                                       Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed March 25, 2009
Do not publish
[CR25]




Caldwell v. State                                                                    Page 3
