                          NUMBERS 13-07-023-CR & 13-07-024-CR

                                       COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG


ERNEST FLING, JR.,                                                                          Appellant,

                                                           v.

THE STATE OF TEXAS,                                                                         Appellee.


    On appeal from the 28th District Court of Nueces County, Texas.


                                   MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Yañez and Benavides
                Memorandum Opinion by Justice Yañez

        A jury found appellant, Ernest Fling, Jr., guilty of burglary of a habitation with

commission of an assault1 and burglary of a habitation with intent to commit retaliation.2

        1
            T EX . P EN AL C OD E A N N . § 30.02(a)(3) (Vernon 2003).

        2
          See id. § 30.02(a)(1). The charges arose out of two separate incidents. The conviction for burglary
with com m ission of an assault (trial court cause num ber 06-CR-0687-A and appellate cause num ber 13-07-
024-CR) arose out of an incident that occurred on February 18, 2006. The conviction for burglary with intent
to com m it retaliation (trial court cause num ber 06-CR-686-A and appellate cause num ber 13-07-023-CR)
The trial court sentenced him to twenty years’ imprisonment for each offense, to be served

concurrently. In a single issue, appellant complains that he received ineffective assistance

of counsel. We affirm.

                                              Background

         Appellant and the complainant, Rosalie Till, started dating in July 2005. Till lived

with her ailing father. According to Till, around October 2005, she began to distance

herself from appellant because he became controlling and abusive. On February 18, 2006,

Till called the police and reported that appellant had entered her home without permission,

dragged her outside, and kicked her in a struggle to force her into his truck. Till testified

that ten days later, on February, 28, 2006, she was awakened by the sound of the back

door closing. She called 911 and officers responded. The officers searched the outside

of the house and discovered appellant’s truck in a nearby field. While the officers were

outside, Till testified that she waited in the house, and that appellant appeared, put his

hand on her throat, and threatened to hurt her and her father if she revealed his presence.

According to Till, appellant instructed her to tell the officers he had left. Instead, Till told

the officers that appellant was inside the house, hiding in her bedroom closet. The officers

entered the home and arrested appellant. The sole issue at trial was whether appellant

had entered the home on both occasions without Till’s consent. Appellant testified that he

had Till’s permission to enter the home on both occasions. Clearly, the jury rejected

appellant’s version of events.




arose out of an incident ten days later, on February 28, 2006. Both indictm ents contained repeat felony
offender enhancem ents. See T EX . P EN AL C OD E A N N . § 12.42(b), (c)(1) (Vernon Supp. 2007). Because the
recent am endm ents to section 12.42 are im m aterial, we cite to the current version of the statute.

                                                     2
       Following his conviction, appellant’s counsel filed a motion for new trial in each

cause, in which he alleged, among other things, (1) jury misconduct, (2) that the State

failed to disclose certain tape recordings allegedly provided by Till to the police, and (3)

that the State failed to disclose “impeaching evidence,” including Till’s records concerning

her treatment for mental illness and her prior convictions. Neither motion alleged that

appellant was denied effective assistance of counsel.

           Appellant alleges his trial counsel was ineffective because he failed to: (1)

adequately pursue a strategy of impeaching Till’s testimony concerning her relationship

with appellant, her mental health, and various other matters ; (2) adequately question jurors

during voir dire; (3) make an opening statement and properly object to certain hearsay

testimony; and (4) pursue his motion for new trial. Appellant contends he was prejudiced

by his counsel’s deficient performance because his conviction rested “almost entirely” on

Till’s testimony.

                            Standard of Review and Applicable Law

       Strickland v. Washington,3 sets forth the standard of review for effectiveness of

counsel.4 Strickland requires a two-part inquiry.5 The defendant must first show that

counsel's performance was deficient, in that it fell below an objective standard of

reasonableness.6         Second, the defendant must further prove there is a reasonable



       3
           Strickland v. W ashington, 466 U.S. 668, 687 (1984).

       4
           See Thompson v. State, 9 S.W .3d 808, 812 (Tex. Crim . App. 1999).

       5
           Id.

       6
           Id.

                                                     3
probability that but for counsel’s deficient performance, the result of the proceeding would

have been different.7 A reasonable probability is a probability sufficient to undermine

confidence in the outcome.8

       The determination regarding whether a defendant received effective assistance of

counsel must be made according to the facts of each case.9 An appellate court looks to

the totality of the representation and the particular circumstances of the case in evaluating

counsel’s effectiveness.10

       The appellant bears the burden of proving by a preponderance of the evidence that

counsel was ineffective.11 There is a strong presumption that counsel's conduct fell within

the wide range of reasonable professional assistance.12 An allegation of ineffective

assistance must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness.13 Normally, trial counsel should be afforded an

opportunity to explain his or her actions “before being condemned as unprofessional and

incompetent.”14

       Generally, the record on direct appeal is not sufficient to show trial counsel’s tactical


       7
           Id.

       8
           Id.

       9
           Id. at 813.

       10
               Id.

       11
               Id.

       12
               Id.

           3
               Id. at 814.1

       14
               Bone v. State, 77 S.W .3d 828, 836 (Tex. Crim . App. 2002).

                                                        4
or strategic reasons for his trial decisions; thus it is usually insufficient to overcome the

presumption of reasonable and professional conduct.15 It is incumbent on appellant to

present a record on appeal that shows a lack of plausible trial strategy.16 In the face of a

record silent as to counsel’s strategy, the appellate court should not speculate about

counsel’s tactics or reasons for taking or not taking certain actions.17

                                                 Analysis

        Here, the record is insufficient to support appellant’s contentions. First, the record

is silent on the reasoning behind counsel’s pre-trial investigation methods and his actions

during trial. In the face of a silent record, we do not speculate on the reasons for trial

counsel’s decisions.18

       Secondly, appellant complains that counsel was deficient by failing to obtain a

hearing on his motion for new trial. No hearing was held on appellant’s motion. The

motion for new trial, however, did not allege ineffective assistance, and counsel had no

opportunity to explain any trial strategy upon which his decisions may have been based.

Because there is no record to show trial counsel’s reasons for acting or failing to act in the

manner challenged, appellant has failed to establish that his counsel’s assistance was

ineffective.19



        15
             Id. at 833.

        16
             See Jackson v. State, 877 S.W .2d 768, 771-72 (Tex. Crim . App. 1994).

        17
             See Bone, 77 S.W .3d at 833-35.

        18
           See Jackson, 877 S.W .2d at 771-72 (stating that a silent record does not require an appellate
court to speculate on the reasons for trial counsel’s decisions).

        19
             See id.

                                                      5
       Moreover, appellant asserts, without argument, explanation, or citation to authority,

that “but for trial counsel’s deficient representation, there is a reasonable probability that

the outcome of the case would have been different.” Appellant has failed to explain why

the purported failures by trial counsel would have caused a different result. We conclude

that appellant has not established the second prong of Strickland because he has failed

to show in reasonable probability that, but for counsel's errors, the result of the proceeding

would have been different.20

      We conclude appellant has failed to present a sufficient record to rebut the

presumption of reasonable and professional conduct by trial counsel.21 We overrule

appellant’s sole issue.

                                                 Conclusion

       We affirm the trial court’s judgments.




                                                         LINDA REYNA YAÑEZ,
                                                         Justice




Do not publish. TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this the 14th day of August, 2008.



       20
            See Strickland, 466 U.S. at 694; Thompson, 9 S.W .3d at 812.

       21
          See Scheanette v. State, 144 S.W .3d 503, 510 (Tex. Crim . App. 2004) (rejecting ineffective
assistance claim for insufficient record).

                                                    6
