                         COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                  FORT WORTH



                                NO. 2-09-363-CR


EVERETT LEE LAUDERDALE                                                APPELLANT

                                         V.

THE STATE OF TEXAS                                                       STATE

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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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                                 I. INTRODUCTION

      Appellant Everett Lee Lauderdale appeals his eight-year sentence for

possession with intent to deliver a controlled substance, namely cocaine, of four

grams or more, but less than 200 grams. In a single point, Lauderdale claims

that he received ineffective assistance of counsel. We will affirm.


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       See Tex. R. App. P. 47.4.
                    II. FACTUAL & PROCEDURAL BACKGROUND

      Lauderdale entered an open plea of guilty, and the trial court ordered that

a presentence investigation report (PSI) be prepared and set a hearing on

punishment. At the punishment hearing, the defense called Lauderdale’s father-

in-law and wife to testify. Both testified that although Lauderdale had problems

with drugs in the past, he was trying to clean up and deserved a second chance.

Lauderdale’s wife testified on cross-examination that Lauderdale had been

arrested in Arkansas once before for a drug-related offense but that he had never

gone to prison.2

      The defense recommended community supervision.                 The trial court

sentenced Lauderdale to eight years’ confinement.

      Notice of appeal was timely filed. Counsel for Lauderdale filed a motion for

new trial, arguing that the verdict was contrary to the law and the evidence.

                      III. EFFECTIVE ASSISTANCE OF COUNSEL

      In his sole point, Lauderdale claims that he did not receive effective

assistance of counsel as guaranteed by the Sixth Amendment because his trial

counsel failed to discover, investigate, and prepare against the unadjudicated

offense that the State cross-examined his wife about during the punishment


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        The PSI also included this prior unadjudicated offense. The trial court did
not review the PSI but placed the original under seal in the clerk’s file at the close
of the punishment hearing.

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hearing.    Specifically, he contends that trial counsel failed to request, under

article 37.07, section (3)(g) of the Texas Code of Criminal Procedure, that the

State provide notice of intent to offer evidence of extraneous crimes or bad acts.

                             A. Standard of Review

      We apply a two-pronged test to ineffective assistance of counsel claims.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984);

Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State,

65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808,

812 (Tex. Crim. App. 1999). To establish ineffective assistance of counsel, an

appellant must show by a preponderance of the evidence that his counsel’s

representation fell below the standard of prevailing professional norms and that

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

the trial would have been different. Strickland, 466 U.S. at 687, 104 S. Ct. at

2064; Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 62–63; Thompson, 9

S.W.3d at 812; Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App.

1999).     There is no requirement that an appellate court approach the two-

pronged inquiry of Strickland in any particular order or even address both

components of the inquiry if the defendant makes an insufficient showing on one

component. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

      In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of each case.
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Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance was

reasonable under all the circumstances and prevailing professional norms at the

time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.

Review of counsel’s representation is highly deferential, and the reviewing court

indulges a strong presumption that counsel’s conduct fell within a wide range of

reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at

63.   A reviewing court will rarely be in a position on direct appeal to fairly

evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at

813–14. “In the majority of cases, the record on direct appeal is undeveloped

and cannot adequately reflect the motives behind trial counsel’s actions.”

Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the

presumption    of   reasonable   professional    assistance,   “any   allegation   of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting Thompson, 9

S.W.3d at 813).     It is not appropriate for an appellate court to simply infer

ineffective assistance based upon unclear portions of the record. Mata v. State,

226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

            B. Record is Insufficient to Establish Ineffectiveness

      Here, although the record does not include a request by Lauderdale’s

counsel for the State to provide notice of its intent to offer evidence of extraneous

crimes or bad acts, the PSI refers to the unadjudicated offense that the State
                                         4
questioned Lauderdale’s wife about during cross-examination. It is evident from

the record that defense counsel received the PSI prior to the sentencing hearing

and knew its contents. During closing arguments at the punishment hearing,

defense counsel stated, “Mr. Lauderdale knows that he’s made some mistakes. .

. . He started using drugs in Arkansas, got involved with gangs. It’s all in the

[PSI].”

          Moreover, the record is silent as to trial counsel’s trial strategy in calling

Lauderdale’s wife to testify and as to his strategy and methods of discovering,

investigating, and preparing for the punishment hearing.           Lauderdale did not

complain of ineffective assistance of counsel in his motion for new trial, nor does

there appear to have been a hearing on his motion for new trial.

          Generally, a silent record that provides no explanation for counsel=s

actions will not overcome the strong presumption of reasonable assistance. See

Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Edwards v.

State, 280 S.W.3d 441, 445 (Tex. App.––Fort Worth 2009, pet. ref=d). Because

the record is silent as to defense counsel’s strategy and methods used in

discovering and preparing for the complained-of unadjudicated offense and

because the claim of ineffectiveness is not firmly founded in the record, we must

presume that trial counsel rendered reasonable professional assistance. See

Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14. Consequently, we



                                             5
hold that Lauderdale has not satisfied the first Strickland prong, and we overrule

his sole point.

                                IV. CONCLUSION

      Having overruled Lauderdale’s sole point, we affirm the trial court’s

judgment.



                                                  SUE WALKER
                                                  JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 9, 2010




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