Affirmed and Memorandum Opinion filed February 2, 2012.




                                         In The

                      Fourteenth Court of Appeals

                                  NO. 14-11-00128-CR

                          JAMES IAN MURRAY, Appellant

                                            V.

                          THE STATE OF TEXAS, Appellee

                       On Appeal from the 232nd District Court
                                Harris County, Texas
                           Trial Court Cause No. 1254971



                        MEMORANDUM OPINION

       Appellant James Ian Murray appeals his conviction for possession of a controlled
substance with intent to deliver, claiming he received ineffective assistance of counsel at
trial. We affirm.

                      FACTUAL AND PROCEDURAL BACKGROUND

       Appellant was charged by indictment with the offense of possession with intent to
deliver a controlled substance. The State also alleged that appellant used and exhibited a
deadly weapon, a firearm, in the commission of the offense. Appellant pleaded ―not
guilty.‖
        At trial, a special agent with the Drug Enforcement Administration testified that
agents had information that a cooperating source could purchase methamphetamine at a
particular residence from appellant, who was a target of the agent‘s investigation. Agents
organized what is known as a controlled buy, in which the informant, using $500
provided by the agents, purchased narcotics from appellant at the residence; the
transaction was conducted at the agents‘ direction and under the agents‘ surveillance.
Based on information derived from the controlled buy, the agents obtained a search
warrant for the residence. Before executing the search warrant on the following day, the
agents conducted surveillance of the residence and observed appellant drive away from
the residence.

        A local police officer, who was working with the agents, conducted a traffic stop
of appellant‘s vehicle and arrested him. The officer told appellant about the search
warrant and read appellant Miranda warnings. During the traffic stop, appellant told the
officer that there was methamphetamine in a box on a table in the living room of the
home.

        The officer and appellant went to the home, where agents executed the search
warrant. Inside a bedroom, agents discovered the following: two plastic bags containing
a substance that later tested positive for methamphetamine, a substance that later was
confirmed as marijuana, powder, pills, six or seven small digital scales, and a number of
unused plastic bags.    In the bedroom closet, they found a number of firearms and
ammunition.      In the living room of the home, agents discovered two plastic bags
containing a substance later confirmed to be methamphetamine as well as marijuana and
three pills inside a black box on a table. Agents also discovered $1,300 in cash and
documents reflecting that appellant lived in the home. The methamphetamine found at
the home weighed a total of 17.8 grams. As the agents were executing the search
warrant, one agent spoke with appellant about the possibility of cooperating with the



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investigation; the agent testified that appellant subsequently decided not to cooperate
with the agents.

       The jury found appellant guilty as charged. Appellant was sentenced to twenty
years‘ confinement. In two issues, appellant claims he received ineffective assistance of
counsel during trial based on his trial counsel‘s failure to object to testimony about the
controlled buy and to statements appellant made during custodial interrogation.

                   INEFFECTIVE-ASSISTANCE-OF-COUNSEL ANALYSIS

       Both the United States and Texas Constitutions guarantee an accused the right to
assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; Tex. Code Crim.
Proc. Ann. art. 1.051 (West 2005). This right necessarily includes the right to reasonably
effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim.
App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial
counsel‘s representation fell below an objective standard of reasonableness, based on
prevailing professional norms; and (2) there is a reasonable probability that the result of
the proceeding would have been different but for trial counsel‘s deficient performance.
Strickland, 466 U.S. at 688–92. Moreover, appellant bears the burden of proving his
claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.
Crim. App. 1998).

       In assessing appellant‘s claims, we apply a strong presumption that trial counsel
was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We
presume counsel‘s actions and decisions were reasonably professional and were
motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.
App. 1994). When, as in this case, there is no proper evidentiary record developed at a
hearing on a motion for new trial, it is extremely difficult to show that trial counsel‘s
performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002). If there is no hearing or if counsel does not appear at the hearing, an affidavit
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from trial counsel becomes almost vital to the success of an ineffective-assistance claim.
Stults v. State, 23 S.W.3d 198, 208–09 (Tex. App.—Houston [14th Dist.] 2000, pet.
ref‘d). The Court of Criminal Appeals has stated that it should be a rare case in which an
appellate court finds ineffective assistance on a record that is silent as to counsel‘s trial
strategy. See Andrews, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005). On such a silent
record, this court can find ineffective assistance of counsel only if the challenged conduct
was ―‗so outrageous that no competent attorney would have engaged in it.‘‖ Goodspeed
v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57
S.W.3d 436, 440 (Tex. Crim. App. 2001)). There was no motion for new trial filed in
this case.

       In his first issue, appellant asserts his trial counsel should have objected to
testimony from an agent about the unnamed cooperating source who claimed to have
purchased narcotics from appellant in the controlled buy. Appellant also complains that
his trial counsel elicited similar testimony from a different agent on cross-examination
about the out-of-state cooperating source who provided agents with appellant‘s address,
identified appellant from a photograph the agents showed him, and claimed to know
appellant as ―Jamie.‖ Appellant characterizes this testimony as inadmissible hearsay and
extraneous-offense evidence. Appellant also refers to a later point in trial, when the State
attempted to elicit more testimony about who sold the narcotics in the controlled buy.
The trial court summoned the parties to a bench conference. At the bench conference, the
trial court referred to the testimony as hearsay and queried why appellant‘s trial counsel
was not objecting. Appellant‘s trial counsel acknowledged that he planned to object, that
he wanted to hear the testimony first, and that he had a strategic reason for not objecting.
Appellant‘s counsel also stated that he wished to confer with his client; the trial court
denied that request.

       Appellant did not file a motion for new trial and his trial counsel‘s reasons for his
acts and omissions do not appear in the record; the record is silent as to the rationale

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behind trial counsel‘s strategy in not objecting to the testimony and later eliciting similar
testimony. See Lopez v. State, 343 S.W.3d 137, 143–44 (Tex. Crim. App. 2011). We
will not speculate in hindsight as to the reasons for trial counsel‘s decisions. See Lopez,
343 S.W.3d at 143. We presume trial counsel‘s conduct was motivated by sound trial
strategy when reasons for the challenged conduct do not appear in the record. See
Garcia, 57 S.W.3d at 440. Appellant has failed to rebut the strong presumption that his
trial counsel‘s performance fell within the wide range of reasonably professional
assistance. See Lopez, 343 S.W.3d at 143–44.

       In his second issue, appellant claims that his trial counsel should have objected to
testimony regarding appellant‘s statements made to an agent following appellant‘s arrest
suggesting that appellant refused to cooperate with the investigation. Appellant also
asserts his trial counsel improperly elicited testimony that appellant told the arresting
officer during the traffic stop that he had methamphetamine in a black box on a table in
his living room. The record does not reflect trial counsel‘s rationale or strategy for not
objecting to the agent‘s testimony or in eliciting the officer‘s testimony; however,
plausible trial strategy may include a plan to appear open and honest with the jury. See
Stroman v. State, 69 S.W.3d 325, 332 (Tex. App.—Texarkana 2002, pet. ref‘d)
(overruling objection that trial counsel rendered ineffective assistance by failing to object
to an officer‘s testimony that the accused was not cooperative). Appellant has failed to
rebut the strong presumption that his trial counsel exercised reasonable professional
judgment in his representation. See Thompson, 9 S.W.3d at 814.

       Appellant has failed to demonstrate that he received ineffective assistance of
counsel. Accordingly, we overrule appellant‘s two issues.




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      The trial court‘s judgment is affirmed.




                                         /s/       Kem Thompson Frost
                                                   Justice


Panel consists of Justices Frost, Seymore, and Jamison.
Do Not Publish — Tex. R. App. P. 47.2(b).




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