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                                               OPINION

                                          No. 04-09-00338-CR

                                           Anthony LYNCH,
                                               Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                       From County Court at Law No. 12, Bexar County, Texas
                                     Trial Court No. 869408
                            Honorable Michael E. Mery, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: April 7, 2010

AFFIRMED

           Following the denial of his motion to suppress and his motion for dismissal based on a denial

of a speedy trial, appellant, Anthony Lynch, pled not guilty to the offense of driving while

intoxicated. A jury found appellant guilty, and the trial court assessed punishment at six months’

confinement, probated. We affirm.
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                                    PLEA NEGOTIATIONS

       In his first issue, appellant contends the trial court improperly participated in plea

negotiations with the State and appellant, refused to enforce the agreement resulting from the

negotiations, and refused to allow details of the agreement into evidence during the speedy trial

hearing.

       A trial judge should avoid participation in plea negotiations until an agreement has been

reached, in order to “avoid the appearance of any judicial coercion or prejudgment of the defendant

since such influence might affect the voluntariness of the defendant’s plea.” Perkins v. Court of

Appeals, 738 S.W.2d 276, 282 (Tex. Crim. App. 1987); see also Ex parte Shuflin, 528 S.W.2d 610,

617 (Tex. Crim. App. 1975). Here, as explained below, the record does not support appellant’s

contentions.

       On April 17, 2008, a hearing was held on appellant’s motion to dismiss his case for failure

to provide him a speedy trial. In the course of questioning appellant on how the delay in getting to

trial had affected him, defense counsel asked whether the delay had cause appellant any “emotional

problems.” The State interrupted, asked “for an objection,” and asked to be heard in chambers with

defense counsel. After a discussion was held in chambers between the judge, defense counsel, and

the State and everyone came back into the courtroom, the trial court stated on the record as follows:

             The Court has recessed this hearing and will continue to do so. There have
      been some substantial off-the-record discussions in chambers without the defendant
      present, although he is in court, but with defense counsel and the State’s lawyers and
      the Court.
             We’re going to recess this matter for sixty days.

       No record of the in-chambers conference was made. The next speedy trial hearing occurred

almost one year later, on May 18, 2009. Defense counsel asked that the record reflect an in-


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chambers conference had been held “and there was a relevant, I guess, an agreement of some kind.

I wouldn’t call it a plea bargain agreement. It was an agreement that was entered into between the

State and the defendant.” At this hearing, appellant testified he believed that as long as he provided

documentation showing he was receiving regular treatment by a psychologist, his case would be

dismissed. In the midst of discussing both defense counsel’s request to obtain the State’s file on

which the agreement was allegedly noted and the State’s work-product objection to the request, the

trial court stated that the State’s characterization of the agreement, defense counsel’s characterization

of the agreement, “just as my own characterization of any notes I have, they’re not the same as an

actual agreement.” The court also stated as follows:

        So the Court of Appeals is going to have to figure out that, in fact, there were some
        discussions held in my office because of the conditions that were being exhibited in
        open court [on April 17, 2008] which brought about the need for further sensitivities.
        This was not treated like a regular case and everybody knows that.

        No written plea bargain was admitted into evidence and the specific terms of any such

agreement are not part of either the clerk’s record or the reporter’s record on appeal. Therefore, we

must conclude the record does not support appellant’s contention that a plea bargain was actually

reached during the April 17, 2008 discussion between the defense and the State. Accordingly,

appellant’s first issue is without merit.

                         INEFFECTIVE ASSISTANCE OF COUNSEL

        In his second issue, appellant asserts defense counsel did not render effective assistance of

counsel because he failed to ensure the record reflected what transpired in the judge’s chambers on

April 17, 2008, he failed to follow through with the plea bargain, his failure to attend to appellant’s




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case undermined the speedy trial claim, and he failed to apprise appellant of developments in his

case.

        To prevail on this complaint, appellant had the burden to prove by a preponderance of the

evidence that: (1) counsel’s performance was deficient, i.e., his assistance fell below an objective

standard of reasonableness; and (2) appellant was prejudiced, i.e., a reasonable probability exists that

but for counsel’s unprofessional errors, the result of the proceeding would have been different. See

Strickland v. Washington, 466 U.S. 668 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.

App. 1999). An appellate court looks to the totality of the representation and the particular

circumstances of each case in evaluating the effectiveness of counsel. Thompson, 9 S.W.3d at 813.

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

professional assistance. Id. To defeat 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.

        A motion for new trial was not filed; however, our review of the record from both speedy

trial hearings indicates defense counsel and the State reached some sort of agreement during the first

hearing when counsel met in the judge’s chambers. Exactly what the agreement was is unclear

because counsel did not reduce it to writing or place the substance of the agreement on the record.

The record also indicates that, despite counsel’s own belief that appellant’s case would be dismissed

upon compliance with an agreement, defense counsel did not pursue a written dismissal or any other

disposition of appellant’s case. Finally, the record indicates appellant started seeing a mental health

professional in an attempt to comply, at least in part, with his understanding of the terms of the

agreement.


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       However, the acts or omissions that form the basis of appellant’s claim of ineffective

assistance must be supported by the record. Id. at 814. A silent record that provides no explanation

for counsel’s actions usually will not overcome the strong presumption of reasonable assistance. Id.

at 813-14. Therefore, we must conclude appellant has not demonstrated on this record that he

received ineffective assistance of counsel.




                                                      Sandee Bryan Marion, Justice

PUBLISH




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