                                      NO. 12-13-00098-CR

                             IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

RALPH WAYNE TILLMAN, JR.,                              §      APPEAL FROM THE 2ND
APPELLANT

V.                                                     §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                               §      CHEROKEE COUNTY, TEXAS

                                      MEMORANDUM OPINION
       Ralph Wayne Tillman, Jr. appeals his conviction for felony driving while intoxicated, for
which he was sentenced to imprisonment for twenty years. In one issue, Appellant argues that he
received ineffective assistance of counsel. We affirm.


                                               BACKGROUND
       Appellant was charged by indictment with felony1 driving while intoxicated (DWI) and
pleaded “not guilty.” The indictment further alleged that Appellant was previously convicted of
injury to a child. Following a bench trial, the trial court found Appellant “guilty” as charged.
The matter proceeded to a trial on punishment, at which Appellant pleaded “true” to the
enhancement allegation. Ultimately, the trial court sentenced Appellant to imprisonment for
twenty years, and this appeal followed.


                                INEFFECTIVE ASSISTANCE OF COUNSEL
       In his sole issue, Appellant argues that he received ineffective assistance of counsel.
Specifically, Appellant argues that his trial counsel was ineffective because he (1) stipulated to
Appellant’s intoxication, (2) offered no objection to the blood test evidence indicating that

       1
           See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West Supp. 2013).
Appellant’s blood-alcohol level was in excess of the legal limit, (3) stipulated and offered no
objections to Appellant’s two prior DWI convictions, and (4) failed to object to the enhancement
paragraph at Appellant’s trial on punishment.
Governing Law
       Claims of ineffective assistance of counsel are evaluated under the two step analysis
articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984).
The first step requires the appellant to demonstrate that trial counsel’s representation fell below
an objective standard of reasonableness under prevailing professional norms. See Strickland,
466 U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or
omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell
below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500
(Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any
portion of trial counsel’s representation, but will judge the claim based on the totality of the
representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
       To satisfy the Strickland standard, the appellant is also required to show prejudice from
the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex.
Crim. App. 1999). To establish prejudice, an appellant must prove that but for counsel’s
deficient performance, the result of the proceeding would have been different. See Strickland,
466 U.S. at 694, 104 S. Ct. at 2068.
       In any case considering the issue of ineffective assistance of counsel, we begin with the
strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994).      We must presume counsel’s actions and decisions were reasonably
professional and were motivated by sound trial strategy. See id. Appellant has the burden of
rebutting this presumption by presenting evidence illustrating why his trial counsel did what he
did. See id. Appellant cannot meet this burden if the record does not affirmatively support the
claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012); Garza v. State,
213 S.W.3d 338, 347–48 (Tex. Crim. App. 2007) (where appellant argued ineffective assistance
because trial counsel failed to offer any mitigating evidence during punishment phase of trial,
without record indicating reasons for a trial counsel’s actions or intentions, court presumed trial
counsel had reasonable trial strategy); Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App.
1998) (inadequate record on direct appeal to evaluate whether trial counsel provided ineffective



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assistance); Phetvongkham v. State, 841 S.W.2d 928, 932 (Tex. App.–Corpus Christi 1992, pet.
ref’d, untimely filed) (inadequate record to evaluate ineffective assistance claim); see also Beck
v. State, 976 S.W.2d 265, 266 (Tex. App.–Amarillo 1998, pet. ref’d) (inadequate record for
ineffective assistance claim, citing numerous other cases with inadequate records to support
ineffective assistance claim). A record that specifically focuses on the conduct of trial counsel is
necessary for a proper evaluation of an ineffectiveness claim. See Kemp v. State, 892 S.W.2d
112, 115 (Tex. App.–Houston [1st Dist.] 1994, pet. ref’d).
       Appellant’s burden on appeal is well established.            See Saenzpardo v. State, No.
05-03-01518-CR, 2005 WL 941339, at *1 (Tex. App.–Dallas 2005, no pet.) (op., not designated
for publication). Before being condemned as unprofessional and incompetent, defense counsel
should be given an opportunity to explain his or her actions. See Bone v. State, 77 S.W.3d 828,
836 (Tex. Crim. App. 2002). Thus, absent a properly developed record, an ineffective assistance
claim must usually be denied as speculative, and, further, such a claim cannot be built upon
retrospective speculation. Id. at 835.
Evaluation of Trial Counsel’s Representation
       Here, Appellant sets forth in his brief that his attorney’s performance at trial fell below
the professional norm because he stipulated to Appellant’s intoxication and two prior DWI
convictions and offered no objection to evidence of Appellant’s blood-alcohol level and the
enhancement paragraph. Yet, the record before us is silent about trial counsel’s strategy or why
he chose the course he did. Normally, a silent record cannot defeat the strong presumption of
effective assistance of counsel. See Garza, 213 S.W.3d at 348; Thompson v. State, 9 S.W.3d
808, 813–14 (Tex. Crim. App. 1999); but see Menefield, 363 S.W.3d at 593 (holding if trial
counsel is not given opportunity to explain allegedly deficient actions, appellate court should not
find deficient performance absent challenged conduct “so outrageous that no competent attorney
would have engaged in it”); Andrews v. State, 159 S.W.3d 98, 102–03 (Tex. Crim. App. 2005)
(reversing a conviction “in a rare case” on the basis of ineffective assistance of counsel when
trial counsel did not object to a misstatement of law by the prosecutor during argument).
       In Andrews, the same prosecutor who filed a motion to cumulate the sentences in four
counts of sexual abuse later argued to the jury, “You give him 20 years in each case, it’s still just
20 years. It’s still not 80. You can give different amounts if you want. You can give 20, 10, 10,
five, it’s still just 20.” Id. at 100. The appellant’s trial counsel did not object to the prosecutor’s



                                                  3
misstatement of the law. Id. The trial court ultimately granted the State’s motion to cumulate
the sentences and imposed a combined prison sentence of seventy-eight years. Id. The court
concluded that the argument left the jury with the incorrect impression that the appellant’s
sentences could not be stacked and that the appellant would serve no more than twenty years in
prison for all four counts. Id. at 103. Therefore, the court held that, under the “extremely
unusual circumstances of [the] case,” the record contained all of the information it needed to
conclude that there could be “no reasonable trial strategy for failing to object” to the prosecutor’s
misstatement of the law. Id.
       The “extremely unusual circumstances” in Andrews are not present in the case at hand.
Counsel’s reasons in Andrews, if any, were unnecessary to resolve the ineffective assistance of
counsel claim. See Berry v. State, No. 05-04-01161-CR, 2005 WL 1515512, at *3 (Tex. App.–
Dallas Jun. 28, 2005, no pet.) (op., not designated for publication). But failing to object to a
misstatement of the law that is detrimental to one’s client when the harm is so clearly presented
by the record on appeal is quite different from determining whether to stipulate to facts of
consequence or offer no objection to certain evidence or allegations as a matter of trial strategy.
Cf. Garza, 213 S.W.3d at 348; Saenzpardo, 2005 WL 941339, at *2; see Kelley v. State, No. 12-
07-00063-CR, 2008 WL 2571831, at *3–4 (Tex. App.–Tyler June 30, 2008) (mem. op., not
designated for publication) (failure of trial counsel to object to testimony at trial not ineffective
assistance because counsel’s underlying reasons for decision not demonstrated by record); Bush
v. State, No. 02-01-00399-CR, 2003 WL 3600954, at *2 (Tex. App.–Fort Worth Feb. 20, 2003,
pet. ref’d) (mem. op., not designated for publication) (decision of trial counsel to not offer to
stipulate to appellant’s prior DWI convictions for jurisdictional purposes not ineffective
assistance because counsel’s underlying reasons for decision not demonstrated by record).
       Having reviewed the record in the instant case, we conclude that the facts before us are
distinguishable from the facts in Andrews and Appellant’s trial counsel’s alleged deficient
conduct is not “so outrageous that no competent attorney would have engaged in it.” See
Menefield, 363 S.W.3d at 593. Thus, we decline to hold that the record before us contains all of
the information needed for us to conclude that there could be no reasonable trial strategy for
Appellant’s trial counsel’s alleged unprofessional acts. Therefore, we hold that Appellant has
not met the first prong of Strickland because the record does not contain evidence concerning
Appellant’s trial counsel’s reasons for choosing the course he did. As a result, Appellant cannot



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overcome the strong presumption that his counsel performed effectively. Appellant’s sole issue
is overruled.


                                                   DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.



                                                                  SAM GRIFFITH
                                                                     Justice

Opinion delivered December 20, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle,   J.




                                              (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                         DECEMBER 20, 2013


                                          NO. 12-13-00098-CR


                                 RALPH WAYNE TILLMAN, JR.,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                  Appeal from the 2nd District Court
                           of Cherokee County, Texas (Tr.Ct.No. 18554)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Sam Griffith, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
