                          NUMBER 13-12-00392-CR

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

CHAD WADE SPENCE,                                                      Appellant,


                                       v.


THE STATE OF TEXAS,                                                      Appellee.


                   On appeal from the 24th District Court
                        of Victoria County, Texas.


                       MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Longoria
             Memorandum Opinion by Justice Longoria
      By one issue, appellant, Chad Wade Spence, appeals his conviction for three

offenses: (1) manufacture or delivery of methamphetamine, a controlled substance in

penalty group one, in an amount of 400 grams or more, a first-degree felony, see TEX.

HEALTH & SAFETY CODE ANN. § 481.112(a), (f) (West 2010); (2) possession of certain
chemical precursors, to-wit: ephedrine, pseudoephedrine, and norpseudoephedrine,

with intent to manufacture methamphetamine, a second-degree felony, see id. §§

481.002(51)(N)–(P), 481.124(a)(3), (d)(1) (West 2010); and (3) possession or transport

of anhydrous ammonia in a container or receptacle that is not designed or

manufactured to hold or transport anhydrous ammonia, a third-degree felony, see id. §

481.1245(a)(1), (d) (West 2010). We affirm.

                                     I. BACKGROUND

       Appellant’s case was tried to a jury. During his opening statement, counsel for

appellant told the jury that the evidence would show that Deborah McDaniel had

admitted to running the methamphetamine laboratory at issue in this case, that she had

identified a man named J.P. Mitchell as her partner in running the lab, and that she had

stated that appellant was not involved in their criminal enterprise. Counsel also told the

jury that the evidence would show that McDaniel had two children taken from her by

Child Protective Services. According to counsel, the threat of losing her children gave

McDaniel a motive to falsely accuse appellant.        Counsel then acknowledged that

appellant was on parole, but he also told the jury that the evidence would show that

appellant had never tested positive for drug use while on parole.

       The State called a number of witnesses to testify regarding the circumstances of

appellant’s arrest.   Although it is unnecessary to summarize the testimony in this

memorandum opinion, see TEX. R. APP. P. 47.4, we note that there was substantial

evidence of appellant’s guilt.

       Appellant’s attorney cross-examined the State’s witnesses. Counsel also called

witnesses to testify on behalf of appellant. These included McDaniel, who testified that



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appellant was not involved in running the methamphetamine laboratory at issue in this

case, that she and Mitchell operated the lab, and that appellant did not know they were

manufacturing methamphetamine.           McDaniel also testified that she gave a false

statement to police implicating appellant because she did not want to lose custody of

her two children as a result of her activities.

         Upon completion of appellant’s case, appellant asked to speak to the trial court

and proceeded to complain that counsel was not calling the witnesses he requested.

Counsel responded by informing the court that he had, so far, asked the witnesses

every question that appellant asked him to ask and that every such question had hurt

appellant’s case. Counsel told the court that he felt he now needed to go against

appellant’s additional ideas to protect appellant.       The following exchange then took

place:

         Counsel:     [Appellant], I’ve admonished you that I do not want you to
                      testify.

         Appellant:   I will testify. I will testify. I feel that that jury and the people
                      in the stands have said that an innocent man can’t stand up
                      and talk for himself, it has appeared to me and if it was me I
                      would hold you accountable for your actions if you weren’t
                      even willing to tell me nothing.

Subsequently, counsel advised appellant not to testify and warned appellant of the

consequences of taking the stand.            Nevertheless, appellant elected to make a

statement to the jury. He admitted to his prior drug usage, to having assisted in the

theft of weapons, and to having violated his probation by possessing hunting knives and

a baton. He also admitted to purchasing ephedrine and giving it to people he suspected

were using it for illegal purposes, though he denied making methamphetamine himself.

Appellant also admitted to falsifying parole papers.

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         On cross-examination, the prosecutor asked appellant whether McDaniel

manufactured methamphetamine at their residence. Appellant denied that she had ever

done so. The prosecutor then interjected, “That’s not what she told me.” Counsel for

appellant made no objection to the prosecutor’s remark.

         At the conclusion of the trial, the jury found appellant guilty of the three charged

offenses. This appeal ensued.

                                         II. ANALYSIS

         In one issue, appellant argues that his conviction must be reversed because he

received ineffective assistance of counsel at trial.

A. Standard of Review

         Both the United States and Texas Constitutions guarantee an accused the right

to assistance of counsel. U.S. Const. amend. VI; TEX. CONST. art. 1, § 10; see also TEX.

CODE CRIM. PROC. ANN. art. 1.051 (West 2010). To prove ineffective assistance of

counsel, the defendant must meet the heavy burden established in Strickland v.

Washington, 466 U.S. 668, 687 (1984). Under Strickland, assistance of counsel is

ineffective if, in considering the totality of the circumstances: (1) counsel made such

serious errors that he was not functioning effectively as counsel; and (2) counsel’s

deficient performance prejudiced the defense to such a degree that the defendant was

deprived of a fair trial. Id.; Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App.

1995).

         “A convicted defendant making a claim of ineffective assistance must identify the

acts or omissions of counsel that are alleged not to have been the result of reasonable

professional judgment.” Strickland, 466 U.S. at 690. The record must affirmatively



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demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999). We will not find counsel ineffective when the record is silent as to

counsel’s reasoning or strategy. Godoy v. State, 122 S.W.3d 315, 322 (Tex. App.—

Houston [1st Dist.] 2003, pet. ref’d).

B. Applicable Law

       “A substantial risk of failure accompanies an appellant’s claim of ineffective

assistance of counsel on direct appeal.” Thompson, 9 S.W.3d at 813. “Rarely will a

reviewing court be provided the opportunity to make its determination on direct appeal

with a record capable of providing a fair evaluation of the merits of the claim involving

such a serious allegation.” Id. “In the majority of instances, the record on direct appeal

is simply undeveloped and cannot adequately reflect the failings of trial counsel.” Id. at

813–14.

       “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. at 814 (quotations omitted).

“Indeed in a case such as this, where the alleged derelictions primarily are errors of

omission de hors the record rather than commission revealed in the trial record,

collateral attack may be the vehicle by which a thorough and detailed examination of

alleged ineffectiveness may be developed and spread upon a record.” Id. Thus, the

Texas Court of Criminal Appeals has held that the presumption of reasonable

professional assistance is not rebutted where the record is silent as to counsel’s

reasons for not objecting to the State’s persistent attempts to offer inadmissible

evidence. See id. (“The record in the case at bar is silent as to why appellant’s trial



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counsel failed to object to the State’s persistent attempts to elicit inadmissible hearsay.

Therefore, appellant has failed to rebut the presumption this was a reasonable

decision.”).

C. Discussion

       Appellant submits that this case is one of the rare cases that actually meets the

rigid Strickland test. Appellant complains about three different aspects of his counsel’s

representation:    (1) counsel’s opening statement in which he informed the jury that

appellant was on parole; (2) counsel’s failure to object to and request limiting

instructions regarding evidence of extraneous offenses offered by the State; and (3)

counsel’s failure to object and move for a mistrial when, during cross-examination of

appellant, the prosecutor asked whether appellant and McDaniel had ever cooked

methamphetamine at their house, appellant denied the allegation, and the prosecutor

responded by stating, “That’s not what she told me.”

       Trial counsel “should ordinarily be afforded an opportunity to explain his actions

before being denounced as ineffective.” Menefield v. State, 363 S.W.3d 591, 593 (Tex.

Crim. App. 2012). In this case, counsel has not been afforded an opportunity to explain

the reasons for his actions with regard to his opening statement and with regard to his

failure to object to the evidence of extraneous offenses and the prosecutor’s remark

during appellant’s cross-examination.     We do not know the reasons for counsel’s

decisions.     See Ortiz v. State, 93 S.W.3d 79, 88–89 (Tex. Crim. App. 2002) (“If

counsel’s reasons for his conduct do not appear in the record and there is at least the

possibility that the conduct could have been legitimate trial strategy, we will defer to

counsel’s decisions and deny relief on an ineffective assistance claim on direct



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appeal.”). It is possible that counsel’s conduct could have been grounded in legitimate

trial strategy. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011) (“When such

direct evidence is not available, we will assume that counsel had a strategy if any

reasonably sound strategic motivation can be imagined.”).

       On the record before us, we cannot conclude that counsel’s conduct was “so

outrageous that no competent attorney would have engaged in it.”        Menefield, 363

S.W.3d at 593.      Consequently, we conclude that the record fails to show deficient

performance. See Badillo v. State, 255 S.W.3d 125, 129 (Tex. App.—San Antonio

2008, no pet.) (“[T]hus a silent record on the reasoning behind counsel’s actions is

sufficient to [overrule this issue.]”).

       Appellant’s one issue is overruled.

                                          III. CONCLUSION

       The judgment of the trial court is affirmed.



                                                    _______________________
                                                    NORA L. LONGORIA
                                                    Justice
Do not publish.
TEX. R. APP. P. 47.2(b)

Delivered and filed the
28th day of February, 2013.




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