AFFIRM; Opinion Filed December 7, 2017.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-16-01446-CR

                                 WADE PATE, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 2
                                   Dallas County, Texas
                            Trial Court Cause No. F16-33638-I

                             MEMORANDUM OPINION
                          Before Justices Bridges, Myers, and Schenck
                                  Opinion by Justice Schenck
       Wade Pate appeals his conviction for aggravated robbery with a deadly weapon. In a

single issue, he argues he was denied effective assistance of counsel when his trial counsel failed

to object to evidence of inadmissible extraneous offenses during the punishment phase of trial.

We affirm the trial court’s judgment. TEX. R. APP. P. 47.4.

                          FACTUAL AND PROCEDURAL BACKGROUND

       On February 18, 2016, Pate walked into an electronics store and asked to see three cell

phones. He asked the sales clerk to show him the accessories available for the phones, and while

she was distracted, he gathered up the three cell phones, walked out of the store, and began

running down the street. The sales clerk ran after him, but when Pate stopped, pulled out a gun,

and pointed it at the sales clerk, she briefly stopped but quickly resumed running. Pate then put
away the gun and ran to get into the passenger seat of a car, which then drove off. A few months

later, the police arrested Pate for the robbery.

       Pate was indicted for the first degree felony offense of aggravated robbery. Pate pleaded

not guilty and proceeded to a jury trial. The jury found Pate guilty of the charged offense.

During the punishment phase, Pate testified in his own defense. On cross-examination, Pate

admitted that he had been involved in several altercations while incarcerated prior to trial, had

been arrested for possession of marijuana, and had been accused of another theft offense

involving a cell phone. Pate’s trial counsel did not object to the admission of this testimony.

Although Pate’s trial counsel argued in favor of community supervision, the jury assessed his

punishment at five years’ confinement.

                                             DISCUSSION

       To determine whether a person has been deprived of effective assistance of counsel, we

apply a two pronged test requiring the defendant show (1) the legal representation fell below an

objective standard of reasonableness and (2) that the deficient legal representation prejudiced the

defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d

53, 57 (Tex. Crim. App. 1986). Under this two-part test, an appellant must establish that: (1)

counsel’s performance was so deficient that his assistance fell below an objective standard of

reasonableness; and (2) but for counsel’s unprofessional errors, the result of the proceeding

would have been different. See Strickland, 466 U.S. at 687. Unless an appellant can establish

both prongs, an appellate court must not find counsel’s representation ineffective. Lopez v. State,

343 S.W.3d 137, 142 (Tex. Crim. App. 2011).

       To satisfy the first prong, appellant bears the burden of proving by a preponderance of the

evidence that counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999). There is a strong presumption that counsel’s conduct fell within the wide range of


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reasonable professional assistance. Strickland, 466 U.S. at 689. We ordinarily will not declare

trial counsel ineffective where there is no record showing counsel had an opportunity to explain

himself. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Without

evidence of the strategy employed, we will presume that counsel was acting in accord with some

deliberately sound trial strategy. See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.

2003).

         Here, Pate filed no motion for new trial. The record is silent as to why Pate’s trial

counsel failed to object to evidence of extraneous offenses during the punishment phase of trial.

The record does contain the State’s notice to Pate that the State might introduce evidence of the

crimes Pate admitted to as well as others. It is possible Pate’s trial counsel deliberately remained

silent in order to avoid inviting the State to present detailed evidence of those offenses to the

jury. In all events, Pate has failed to rebut the presumption that his trial counsel’s conduct fell

within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689;

Thompson, 9 S.W.3d at 813–14. We therefore overrule his sole issue.

                                           CONCLUSION

         We affirm the trial court’s judgment.




                                                       /David J. Schenck/
                                                       DAVID J. SCHENCK
                                                       JUSTICE

DO NOT PUBLISH
TEX. R. APP. P. 47

161446F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

WADE PATE, Appellant                               On Appeal from the Criminal District Court
                                                   No. 2, Dallas County, Texas
No. 05-16-01446-CR        V.                       Trial Court Cause No. F-1633638-I.
                                                   Opinion delivered by Justice Schenck,
THE STATE OF TEXAS, Appellee                       Justices Bridges and Myers participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 7th day of December, 2017.




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