


Thomas Dwayne Mason v. The State of Texas



















COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH





NO. 2-03-260-CR





THOMAS DWAYNE MASON	APPELLANT



V.



THE STATE OF TEXAS	STATE



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FROM THE 372
ND
 DISTRICT COURT OF TARRANT COUNTY



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MEMORANDUM OPINION
(footnote: 1)


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Upon his plea of guilty, the trial court convicted Appellant Thomas Dwayne Mason of sexual assault of a child under seventeen years of age and sentenced him to eighteen years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.  Appellant brings a single point on appeal, arguing that his trial counsel rendered ineffective assistance by not requesting a record at the punishment phase of the trial.  Because we hold that the record does not support Appellant’s contention, we affirm the trial court’s judgment.

As the State has correctly pointed out, courts are very hesitant to find any single error to be per se ineffective assistance of counsel.
(footnote: 2)  And, as the State also points out, the Texas Court of Criminal Appeals has repeatedly warned litigants of the difficulty of proving ineffective assistance of counsel on direct appeal.
(footnote: 3)
	In the case now before us, Appellant did not file a motion for new trial.  Nowhere in the record does Appellant explain how he was harmed by the failure to request a record or what the record would have shown that would have affected the outcome of his appeal.  Appellant does not argue that anything occurred during the punishment phase that even arguably would have constituted error.  This record on direct appeal is simply inadequate to reflect any failings of trial counsel.  Consequently, we overrule Appellant’s sole point on appeal and affirm the trial court’s judgment.













LEE ANN DAUPHINOT

JUSTICE

PANEL A:	LIVINGSTON, DAUPHINOT, and MCCOY, JJ.	

DO NOT PUBLISH

Tex. R. App. P.
 47.2(b)



DELIVERED:  April 8, 2004

FOOTNOTES
1:See
 
Tex. R. App. P.
 47.4.


2:Thompson v. State
, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); 
Rivera v. State
, 981 S.W.2d 336, 339 (Tex. App.—Houston [14
th
 Dist.] 1998, no pet.).


3:Freeman v. State
, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003).


