                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-12-00432-CR


                                 ANDREW PEREZ, APPELLANT

                                                  V.

                               THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 242nd District Court
                                       Hale County, Texas
                Trial Court No. B19114-1203, Honorable Edward Lee Self, Presiding

                                       December 18, 2013

                                 MEMORANDUM OPINION
                       Before CAMPBELL and HANCOCK and PIRTLE, JJ.

       Appellant, Andrew Perez, appeals his conviction, based upon his open plea of

guilty, of the offense of evading arrest or detention,1 and jury-assessed sentence of five

years‘ incarceration in the Texas Department of Criminal Justice, Institutional Division.

Appellant contends that he was denied the effective assistance of counsel during his

trial. Disagreeing with appellant, we will affirm.




       1
           See TEX. PENAL CODE ANN. § 38.04(b)(2)(A) (West Supp. 2013).
                                       Background


       Appellant was indicted for the offense of evading arrest or detention by use of a

vehicle while in flight from a peace officer. Under the Penal Code provision that was

effective at the time of appellant‘s trial, this offense was tried as a third-degree felony.

See id. This provision had been recently amended to make evading arrest or detention

by use of a vehicle while in flight a third-degree felony. See Act 2011, 82nd Leg., R.S.,

ch. 920, § 3, 2011 Tex. Sess. Law Serv. 2320, 2321 (West) (amending TEX. PENAL

CODE ANN. § 38.04, effective September 1, 2011). Appellant‘s trial counsel did not

object to the offense being tried as a third-degree felony.


       After a jury was selected, appellant pled guilty to the offense. As part of proper

plea admonishments, appellant was advised of the applicable range of punishment for

the offense.    After hearing punishment evidence, the jury assessed appellant‘s

punishment at five years‘ incarceration. Appellant did not file a motion for new trial.

However, appellant did timely file notice of appeal.


       Appellant‘s sole issue on appeal is whether trial counsel rendered ineffective

assistance when he failed to object to the constitutionality of the 2011 amendment of

section 38.04 of the Texas Penal Code.


                            Ineffective Assistance of Counsel


       Appellant contends that trial counsel rendered ineffective assistance of counsel

when he failed to object to the constitutionality of the statute that made the offense for

which appellant was charged a third-degree felony. The State responds contending that



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it is not ineffective assistance of counsel when counsel properly advises a defendant of

the existing law.


       Both the federal and state constitutions guarantee an accused the right to have

the assistance of counsel. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX.

CODE CRIM. PROC. ANN. art. 1.05 (West 2005). This right to counsel includes the right to

reasonably effective assistance of counsel. See Strickland v. Washington, 466 U.S.

668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Both state and federal claims of

ineffective assistance of counsel are evaluated under the two prong analysis articulated

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


       First, the appellant must show that counsel‘s representation was deficient by

showing that trial counsel's representation fell below an objective standard of

reasonableness. See id.     To satisfy this prong, the appellant must (1) rebut the

presumption that counsel is competent by identifying the acts and/or omissions of

counsel that are alleged as ineffective assistance, and (2) affirmatively prove that such

acts and/or omissions fell below the professional norm of reasonableness. Stults v.

State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet. ref‘d) (substitute

op.) (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). The

reviewing court may not isolate any portion of trial counsel's representation, but must

judge the claim based on the totality of the representation. See Perez v. State, 310

S.W.3d 890, 893 (Tex. Crim. App. 2010); Thompson, 9 S.W.3d at 813.


       The appellant must then show prejudice resulting from the deficient performance

of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).

To establish prejudice, the appellant must prove there is a reasonable probability that

                                           3
but for counsel's deficient performance, the result of the proceeding would have been

different.   See Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). A

reasonable probability is "a probability sufficient to undermine confidence in the

outcome of the proceedings." Id. Appellant‘s burden of proof is by a preponderance of

the evidence. See id.


       In any case analyzing claims of ineffective assistance of counsel, we begin with

the strong presumption that counsel was competent. See Thompson, 9 S.W.3d at 813;

Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc). We must

presume counsel's actions and decisions were reasonably professional and motivated

by sound trial strategy. See Jackson, 877 S.W.2d at 771. The appellant must rebut this

presumption by presenting evidence illustrating why trial counsel did what he did. See

id. The appellant cannot meet this burden if the record does not reflect the reasons for

the conduct of trial counsel. See Osorio v. State, 994 S.W.2d 249, 253 (Tex. App.—

Houston [14th Dist.] 1999, pet. ref'd); Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.—

Houston [1st Dist.] 1994, pet. ref'd). This kind of record is best developed in a hearing

on an application for a writ of habeas corpus or a motion for new trial. See Kemp, 892

S.W.2d at 115; see also Jackson, 973 S.W.2d at 957 (stating that, when counsel is

allegedly ineffective because of errors of omission, collateral attack is the better vehicle

for developing an ineffectiveness claim).


       When the record is silent as to counsel's reasons for his conduct, finding counsel

ineffective calls for speculation by the appellate court.     See Gamble v. State, 916

S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (citing Jackson, 877

S.W.2d at 771). An appellate court should not speculate about the reasons underlying


                                             4
defense counsel's decisions. Stults, 23 S.W.3d at 208. It is critical for an accused

relying on an ineffective assistance of counsel claim to make the necessary record in

the trial court. Id. Even though the appellant may file a motion for new trial, failing to

request a hearing on the motion may leave the record bare of trial counsel's explanation

of his conduct. See Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.—Houston [1st Dist.]

1999, pet. ref'd). Without a hearing, or if counsel does not appear at the hearing, an

affidavit from trial counsel becomes almost vital to the success of an ineffective

assistance claim. Stults, 23 S.W.3d at 208-09; see Howard v. State, 894 S.W.2d 104,

107 (Tex. App.—Beaumont 1995, pet. ref'd).


       In the present case, appellant did not move for a new trial or file a habeas corpus

petition. Further, appellant did not offer an affidavit from trial counsel. We can find no

evidence in the record regarding trial counsel's potential strategy for not objecting to

appellant being charged with a third-degree felony. ―When the record is silent as to

defense counsel's strategy, we will not guess at counsel's trial tactics or speculate about

his reasons for taking certain actions and not taking others.‖ Stults, 23 S.W.3d at 209

n.6. We are counseled that,


       An appellate court should be especially hesitant to declare counsel
       ineffective based upon a single alleged miscalculation during what
       amounts to otherwise satisfactory representation, especially when the
       record provides no discernible explanation of the motivation behind
       counsel‘s actions – whether those actions were of strategic design or the
       result of negligent conduct.

Thompson, 9 S.W.3d at 814. We are especially reluctant to find ineffective assistance

of counsel where trial counsel has not been given an opportunity to rebut the allegations

against him. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).



                                            5
       Whatever trial counsel's reasons may have been for not objecting to the offense

as charged, in the absence of a record identifying these reasons, we must presume

they were made deliberately as part of sound trial strategy. Because we are unable to

conclude that defense counsel's performance fell below an objective standard without

evidence in the record, we find that the appellant has failed to meet his burden on the

first prong of Strickland.


       Appellant argues that there is no possible sound trial strategy for trial counsel‘s

failure to object to appellant being charged with a third-degree felony in this case. In

fact, appellant contends that the failure of trial counsel to object constitutes a

constructive deprivation of counsel at a critical stage of the proceedings. Appellant‘s

contention that he was deprived of counsel is wholly premised on trial counsel‘s failure

to object to the constitutionality of the 2011 amendment of section 38.04 of the Texas

Penal Code.


       When reviewing the constitutionality of a statute, a reviewing court must presume

that the act is constitutional. Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003).

Courts must give a liberal interpretation in favor of constitutionality when legislation is

challenged. Jessen Assocs., Inc. v. Bullock, 531 S.W.2d 593, 600 (Tex. 1975).


       Appellant‘s arguments relating to the constitutionality of the 2011 amendment to

section 38.04 of the Texas Penal Code essentially presumes that the amendment is

unconstitutional. However, as for specific argument regarding how the amendment is

unconstitutional, appellant relies on argument presented by an appellant in an appeal

filed in the 14th District Court of Appeals. In a related appeal of a pre-trial application for

writ of habeas corpus, the 14th District Court held that, ―the provisions of SB 1416 [the

                                              6
2011 amendment] ‗relate directly or indirectly to the same general subject and have a

mutual connection‘‖ and, therefore, do not violate the Single Subject Rule of the Texas

Constitution. Ex parte Jones, 410 S.W.3d 349, 353 (Tex. App.—Houston [14th Dist.]

2013, pet. granted) (substitute op.) (citing LeCroy v. Hanlon, 713 S.W.2d 335, 337 (Tex.

1986)). While we express no direct opinion on the constitutionality of the challenged

2011 amendment, the 14th District‘s resolution of the issue, at a minimum, makes the

law regarding the constitutionality of the amendment unsettled.            When the law is

unsettled, it is not ineffective assistance of counsel to fail to take a specific action on the

unsettled issue. See State v. Bennett, No. PD-0354-12, 2013 Tex. Crim. App. LEXIS

1735, at *5 (Tex. Crim. App. Nov. 27, 2013). As such, we conclude that trial counsel‘s

failure to object to the constitutionality of the statute under which appellant was charged

with a third-degree felony was not a deprivation of counsel at a critical stage in the

proceedings and, further, was not ineffective assistance of counsel.             We overrule

appellant‘s sole appellate issue.


                                         Conclusion


        Having overruled appellant‘s sole appellate issue, we affirm the judgment of the

trial court.


                                                   Mackey K. Hancock
                                                        Justice


Pirtle, J., concurring in result.


Do not publish.




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