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                                        MEMORANDUM OPINION

                                             No. 04-07-00574-CR

                                          Jeremiah Heath CARDIN,
                                                  Appellant

                                                       v.

                                            The STATE of Texas,
                                                  Appellee

                           From the 198th Judicial District Court, Kerr County, Texas
                                            Trial Court No. B0750
                                 Honorable Charles Sherrill, Judge Presiding1

Opinion by:           Catherine Stone, Justice

Sitting:              Catherine Stone, Justice
                      Karen Angelini, Justice
                      Steven C. Hilbig, Justice

Delivered and Filed: June 25, 2008

AFFIRMED

           Jeremiah Cardin was found guilty of possession of cocaine, and he was sentenced to two

years imprisonment and fined $2,000. Cardin’s only complaint on appeal is that he was denied

effective assistance of counsel during the punishment phase of his trial. We affirm.




           1
               Sitting by assignment.
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       On November 6, 2006, officers were conducting surveillance at a Kerrville nightclub when

they observed signs of drug use by several individuals outside the club. Upon witnessing the drug

activity, officers approached the individuals. Cardin, who was sitting in his vehicle at the time, was

conversing with the drug suspects when the officers approached. Cardin became extremely nervous

and began sweating when the officers identified themselves. The officers ordered Cardin to place

his hands on his steering wheel, but he disregarded the officers’ commands. Concerned for their

safety, the officers removed Cardin from his vehicle and searched Cardin’s vehicle for weapons.

The officers’ search uncovered drug paraphernalia containing cocaine residue. Cardin was

subsequently arrested and charged with possession of less than one gram of cocaine.

       The prosecution offered Cardin a probated sentence in exchange for a plea of guilty on

several occasions before trial. Cardin, however, rejected each of the prosecution’s plea offers and

the case proceeded to trial. Following his trial, the jury found Cardin guilty of the alleged offense.

Cardin elected for the jury to determine his punishment, and the jury sentenced Cardin to two years

confinement and fined him $2,000.

       Cardin appeals, claiming he was denied effective assistance of counsel during the

punishment phase of his trial. Specifically, Cardin complains that he received ineffective assistance

because defense counsel: (1) failed to object when the prosecution introduced evidence of a prior

theft conviction at his punishment hearing; and (2) mistakenly advised him to go to the jury for

punishment, even though he was not eligible for community supervision from the jury See TEX.

CODE CRIM. PROC. ANN. art. 42.12 §§ 4(d)(2), 15(a)(1) (Vernon Supp. 2008).

       To prevail on an ineffective assistance of counsel claim, the defendant must demonstrate by

a preponderance of the evidence that: (1) counsel’s performance was so deficient as to fall below



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an objective standard of reasonableness; and (2) there is a reasonable probability that but for

counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland

v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.

1999). Unless the defendant makes both showings, it cannot be said that the defendant’s conviction

was rendered unreliable by a breakdown in the adversarial process. Strickland, 466 U.S. at 687.

This standard applies to both the guilt-innocence and the punishment phases of trial. Hernandez v.

State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).

       A claim of ineffective assistance of counsel “must be ‘firmly founded in the record’ and ‘the

record must affirmatively demonstrate’ the meritorious nature of the claim.” Goodspeed v. State,

187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (citing Thompson, 9 S.W.3d at 813). We review

counsel’s performance with a high degree of deference and without “the deleterious effects of

hindsight.” Thompson, 9 S.W.3d at 813. “There is a strong presumption that counsel’s conduct falls

within a wide range of reasonable professional assistance, and the defendant must overcome the

presumption.” Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).

       Direct appeal is usually an inadequate vehicle for raising an ineffective assistance of counsel

claim because the record is generally undeveloped, providing no explanation for counsel’s actions.

Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813-14. “[T]rial

counsel should ordinarily be afforded an opportunity to explain his actions before being denounced

as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). “Absent such an

opportunity, an appellate court should not find deficient performance unless the challenged conduct

was ‘so outrageous that no competent attorney would have engaged in it.’” Goodspeed, 187 S.W.3d

at 392 (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).



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       Although Cardin filed a motion for new trial, he did not raise ineffective assistance as a

ground for relief. As a result, no record was ever developed in support of Cardin’s claim of

ineffective assistance. Cardin relies solely upon the reporter’s record of the trial, but that record

contains no evidence of defense counsel’s reasoning or his thought process. Because there is no

evidence in the record to rebut the prevailing presumption that defense counsel’s conduct was within

the range of reasonable professional assistance, and this is not a case where counsel’s conduct was

so outrageous that no competent attorney would have engaged in it, we must conclude that Cardin

has failed to demonstrate he was denied effective assistance of counsel.

       The judgment of the trial court is therefore affirmed.



                                                       Catherine Stone, Justice

DO NOT PUBLISH




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