                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS


 JOHNNIE DEMPSEY WOOD,                            §
                                                                  No. 08-07-00001-CR
                     Appellant,                   §
                                                                    Appeal from the
 v.                                               §
                                                              394th Judicial District Court
                                                  §
 THE STATE OF TEXAS,                                           of Brewster County, Texas
                                                  §
                     Appellee.                                         (TC# 3801)
                                                  §


                                            OPINION

          This is an appeal from a conviction of a family violence assault and aggravated assault.

Appellant was sentenced to 15 years’ and assessed a penalty fine of $5,000 for family violence

assault and sentenced to 30 years’ and assessed a penalty fine of $5,000 for aggravated assault.

In one issue on appeal, Appellant argues he was denied effective assistance of counsel. We

affirm.

          On October 16, 2006, Appellant was charged with family violence assault and aggravated

assault for an incident that occurred on May 20, 2006. Appellant was living with his girlfriend

Michele Miller at her mother Sheila Smith’s house. Ms. Miller testified that Appellant threw an

open pocket knife at her and grazed her pants. They then went into the kitchen where Appellant

hit Ms. Miller in the arm and chest with his fist. He continued hitting Ms. Miller, next in the

forehead with brass knuckles, and finally, he hit her with a baseball bat on her right shin. A jury

convicted Appellant of two counts of family violence assault, and one count of aggravated

assault for the attack on Ms. Miller.
       In one issue on appeal, Appellant argues that he was denied effective assistance of

counsel during trial. We review claims of ineffective assistance of counsel under a two-pronged

test. First, an appellant must establish counsel’s performance fell below an objective standard of

reasonableness under prevailing professional norms. Strickland v. Washington, 466 U.S. 668,

693-94, 104 S.Ct. 2052, 2067-68, 80 L.Ed.2d 674 (1984); Mallet v. State, 65 S.W.3d 59, 62-3

(Tex.Crim.App. 2001). Second, the appellant must establish that counsel’s deficient

performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Jackson v.

State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Prejudice is established by a showing that

there is a reasonable probability that but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Mallet, 65

S.W.3d at 62-3. A reasonable probability is a probability sufficient to undermine confidence in

the outcome. Mallet, 65 S.W.3d at 63. Claims of ineffective assistance must be proved by a

preponderance of the evidence. Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002).

       We must indulge a strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance and the appellant must overcome the presumption that the

challenged conduct might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104

S.Ct. at 2065. An allegation of ineffectiveness must be firmly founded and affirmatively

demonstrated in the record to overcome this presumption. Thompson v. State, 9 S.W.3d 808,

813 (Tex.Crim.App. 1999); see Jackson, 877 S.W.2d at 771. In the majority of instances, this

task is extremely difficult because “the record on direct appeal is simply undeveloped and cannot

adequately reflect the failings of trial counsel.” Thompson, 9 S.W.3d at 813-14. When faced

with a silent record as to counsel’s strategy, this Court will not speculate as to the reasons for


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counsel’s actions. See Jackson, 877 S.W.2d at 771. The Court of Criminal Appeals in

Thompson, further advised that “[a]n appellate court should be especially hesitant to declare

counsel ineffective based upon a single alleged miscalculation during what amounts to otherwise

satisfactory representation, especially when the record provides no discernible explanation of the

motivation behind counsel’s actions--whether those actions were of strategic design or the result

of negligent conduct.” Thompson, 9 S.W.3d at 814.

        Appellant complains that his counsel was ineffective for “open[ing] the door” to

extraneous offenses during the guilt/innocent phase of the trial and not objecting to them under

TEX .R.EVID . 404(b) and 403. The first instance occurred during Ms. Miller’s cross-examination.

Defense counsel asked Ms. Miller about an altercation with Appellant, which took place prior to

the May 2006 assault, and resulted in Ms. Miller moving out of the residence where Appellant

was living at the time. Based on this line of questioning by defense counsel, the State requested

and was allowed to examine Ms. Miller about the prior assault. The second instance took place

during Appellant’s own direct-examination. Defense counsel asked Appellant when he first met

Ms. Miller. During his response, Appellant stated that he became acquainted with Ms. Miller

after he met her ex-boyfriend while he was incarcerated in 2005 for drug and firearm possession.

Appellant contends that trial counsel should not have opened the door to the extraneous offenses

and should have objected to their presentation to the jury. Therefore, Appellant concludes that he

was denied effective assistance of counsel.

        In this case, Appellant did not file a motion for new trial to challenge the alleged

ineffectiveness of his counsel. The record before this Court does not contain trial counsel’s

explanations of the reasons for the inaction alleged as error, therefore it will be difficult for


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Appellant to rebut the strong presumption that trial counsel’s conduct falls within the wide range

of reasonable professional assistance. See Thompson, 9 S.W.3d at 814. Appellant fails to cite

and we were unable to find any case supporting the conclusion that trial counsel’s action or

inaction in this instance would rebut the strong presumption that trial counsel’s conduct falls

within the wide range of reasonable professional assistance. See Thompson, 9 S.W.3d at 814.

Appellant’s issue is overruled.

       The judgment of the trial court is affirmed.


December 18, 2009
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)




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