Opinion issued December 10, 2015




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-13-01027-CR
                            ———————————
                          RODNEY MILUM, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 184th District Court
                            Harris County, Texas
                        Trial Court Case No. 1347034


                           CONCURRING OPINION

      I concur in the Court’s judgment and join in its opinion except in regard to

its discussion of the second issue of appellant, Rodney Milum. 1


1
      In particular, I express concern regarding the majority’s analysis of the
      “performance component” of appellant’s ineffective assistance of counsel claim as
      well as its response to the State’s complaint that appellant did not “raise[]” an
      In his second issue, appellant argues that his trial counsel provided him with

ineffective assistance because counsel “failed to object to the trial court’s

imposition of [certain] conditions of community supervision on appellant, which

are unconstitutional and otherwise invalid.” The two conditions, to which his trial

counsel did not object, place restrictions on appellant’s ability to attend religious

services/activities and his ability to access the internet.

      To prevail on an ineffective-assistance claim, appellant must show that (1)

counsel’s performance was deficient because it fell below an objective standard of

reasonableness and (2) counsel’s deficient performance caused appellant prejudice,

i.e., there is a reasonable probability that, but for his counsel’s unprofessional

errors, the result of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984);

Perez v. State, 310 S.W.3d 890, 892–93 (Tex. Crim. App. 2010). “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. It is appellant’s burden to establish

both prongs of the Strickland test by a preponderance of the evidence, and the


      ineffective-assistance claim until the Court “ordered” him to do so. See Strickland
      v. Washington, 466 U.S. 668, 687–88, 694, 697, 104 S. Ct. 2052, 2064, 2068–69
      (1984) (explaining ineffective assistance of counsel claim has “performance
      component” and “prejudice component”); Andrews v. State, 159 S.W.3d 98, 102
      (Tex. Crim. App. 2005) (“[W]hen no reasonable trial strategy could justify the
      trial counsel’s conduct, counsel’s performance falls below an objective standard of
      reasonableness as a matter of law, regardless of whether the record adequately
      reflects the trial counsel’s subjective reasons for acting as she did.”).

                                            2
failure to demonstrate either deficient performance or prejudice will defeat a claim

of ineffectiveness. See Perez, 310 S.W.3d at 893; Jackson v. State, 973 S.W.2d

954, 956 (Tex. Crim. App. 1998).

      Although a defendant may assert a claim of ineffective assistance of counsel

for the first time on direct appeal, often times the record in such a case is

insufficient. See Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim. App. 2008);

see also Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012);

Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999).                Here,

appellant did not file a motion for new trial in the trial court, and the record

presented to this Court on direct appeal is limited regarding his ineffective-

assistance claim. Cf. Tufele v. State, 130 S.W.3d 267, 271 (Tex. App.—Houston

[14th Dist.] 2004, no pet.).

      Notably, while appellant devotes the majority of his argument regarding his

ineffective-assistance claim to asserting that his trial counsel’s performance was

deficient, he does not identify how such a deficient performance by his counsel

actually prejudiced him. In his brief, appellant devotes only a single sentence to

arguing that he was prejudiced by his trial counsel’s failure to object to the above-

referenced community-supervision conditions.         Specifically, appellant states,

without citation to the record or supporting authority:

      . . . [B]ut for [a]ppellant’s trial counsel’s failure to object to the
      invalid conditions of supervision, the outcome would have been

                                          3
      different in that [a]ppellant would either not have been saddled with
      unconstitutional and legally invalid conditions of community
      supervision for a period of eight years in the first place (had the trial
      court sustained the objections), or would at least have clearly
      preserved the right to challenge those invalid conditions and seek their
      deletion on appeal.

      Mere conclusory assertions of prejudice are not enough. In order to prevail

on his ineffective-assistance claim, “the record must affirmatively demonstrate the

meritorious nature of [his] claim,” and appellant must be able to direct this Court to

objective facts in the record to support a lack of confidence in the outcome, i.e.,

proof of prejudice.     See Menefield, 363 S.W.3d at 592 (internal quotations

omitted); Bone v. State, 77 S.W.3d 828, 836–37 (Tex. Crim. App. 2002); see also

Applin v. State, 341 S.W.3d 528, 535 (Tex. App.—Fort Worth 2011, no pet.) (“It is

not appropriate for an appellate court to simply infer ineffective assistance based

upon unclear portions of the record.”). Here, the record simply does not provide

such evidence of prejudice.

      Because the limited record available in this direct appeal does not support a

finding of prejudice, I would hold that appellant has not met his burden under the

second prong of the Strickland test and cannot prevail on his ineffective-assistance

claim at this juncture. 2 See Ladd v. State, 3 S.W.3d 547, 570 (Tex. Crim. App.


2
      It should be noted that appellant is not without recourse in regard to his
      ineffective-assistance claim. It is well-established that appellant “can resubmit his
      claim via an application for writ of habeas corpus,” which would allow an
      opportunity for “a dedicated hearing [in the trial court] to consider the facts,

                                            4
1999) (defendant’s failure to make any effort to prove prejudice from defense

counsel’s allegedly deficient performance during punishment phase of capital

murder trial precluded relief on ineffective-assistance claim); Mitchell v. State, 989

S.W.2d 747, 748 (Tex. Crim. App. 1999) (defendant claiming ineffective

assistance of counsel must affirmatively prove prejudice from counsel’s deficient

performance).




                                              Terry Jennings
                                              Justice

Panel consists of Justices Jennings, Bland, and Brown.

Jennings, J., concurring.

Publish. TEX. R. APP. P. 47.2(b).




      circumstances, and rationale behind counsel’s actions” and would provide
      appellant with an opportunity to establish that he has been prejudiced by his
      counsel’s failure to object to the challenged community-supervision conditions.
      See Thompson v. State, 9 S.W.3d 808, 814–15 (Tex. Crim. App. 1999); see also
      Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (“[W]e have held
      that, when direct appeal has not provided an adequate record to evaluate a claim
      which might be substantiated through additional evidence gathered in a habeas
      corpus proceeding, we will not apply the general doctrine that forbids raising a
      claim on habeas corpus after it was rejected on appeal.”).

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