                                 NO. 07-07-0297-CR

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL D

                                 AUGUST 27, 2008

                        ______________________________


                    GEORGE WAYNE ANDERSON, APPELLANT

                                         V.

                        THE STATE OF TEXAS, APPELLEE

                      _________________________________

        FROM THE COUNTY COURT AT LAW NO. 4 OF TRAVIS COUNTY;

         NO. 722487; HONORABLE JON WISSER/MIKE DENTON, JUDGE

                       _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                             MEMORANDUM OPINION


      Appellant, George Wayne Anderson, was convicted of assault and family violence,

and punishment was assessed at one year confinement and a $4,000 fine. The trial court

suspended the sentence in favor of misdemeanor community supervision for eighteen

months and payment of a $3,200 fine. On appeal, Appellant raises a single issue. He
contends his counsel was ineffective because he failed to object to testimony related to

extraneous bad acts. We affirm.


                                      Background


      On February 27, 2006, the State charged Appellant with assault on a family or

household member, Cynthia Reiley. At trial, Reiley testified that the assault was the

culmination of an ongoing argument between Appellant and Reiley lasting two weeks.

During these arguments, Appellant threatened to kill her. On January 6, 2006, Appellant

accused Reiley of taking his credit cards. He was upset, angry, and screaming. He

grabbed her in the hallway of their apartment and slammed her against the wall. After

more accusations, he placed her in a chair and tied her wrists behind her with a nylon

jacket so tight he cut the circulation off to her hands. He left her tied in the chair for

approximately thirty minutes while he located his credit cards. When he released her, a

vein in her hand exploded. Appellant had hidden the telephones and barricaded the front

door so she could not leave. She subsequently crawled out the window and ran to Patricia

Sobal, property manager for the apartment complex, in the parking lot.


      Sobal testified she had her assistant call 911 after she became aware of a

disturbance at the apartment complex. She observed Reiley exit the apartment. She

testified Reiley’s hands were black, her wrists and hands injured, she was distressed and

crying. Sobal also observed Appellant telling residents to flee because bombs were going

to explode. She described him as half-dressed and ranting.

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       Jack Eastland, police officer for the Austin Police Department, arrived at the

apartment complex and observed Appellant throwing household items from his window.

He observed the apartment in a ransacked condition, located the nylon jacket used to tie

Reiley’s hands, and observed multiple bruising about Reiley’s arms, wrists, and hands.

When Appellant was informed he was under arrest, he resisted and fought with the

officers. Three to four officers were necessary to handcuff Appellant’s hands behind his

back. APD police officers, Christian Minus and Brian Preusse, corroborated Eastland’s

testimony.


       Appellant testified he grabbed Reiley by the wrists and tied her hands behind her

in a chair with his windbreaker so she could not run out the door. When she started to pull

away, he tightened the double knot. Afterwards, he gave her ice because her wrists were

red. At the trial’s conclusion, the jury found Appellant guilty of assault with bodily injury on

a family or household member.


                                         Discussion


       Appellant asserts that his counsel’s failure to object to testimony by Sobal and

Preusse rendered his counsel’s assistance ineffective. Sobal testified that, shortly after

the incident, she observed Appellant’s apartment window broken, Appellant inside the

apartment without keys, and his subsequent fight with police. Preusse testified that,

approximately a week or two after the incident, he responded to a call and observed

Appellant running down the middle of a street half-dressed with cuts, smearing blood on

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windows, and yelling at people. Preusse testified four to five officers were necessary to

restrain him. Appellant asserts the State adduced evidence of extraneous bad acts to

establish Appellant’s propensity for violence and prejudiced the jury against him.


       We examine ineffective assistance of counsel claims by the standard enunciated

in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986).

Appellant has the burden to show by a preponderance of evidence (1) trial counsel’s

performance was deficient in that it fell below the prevailing professional norms, and (2)

the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable

probability that the result of the proceeding would have been different. See Thompson v.

State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). We examine the totality of counsel’s

representation to determine whether Appellant received effective assistance but do not

judge counsel’s strategic decisions in hindsight. 9 S.W.3d at 813. Rather, counsel’s

conduct is viewed with great deference. Goodspeed v. State, 187 S.W.3d 390, 392

(Tex.Crim.App. 2005). Moreover, any allegation of ineffectiveness must be firmly founded

in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.

Thompson, 9 S.W.3d at 812.


       In the usual case in which an ineffective assistance claim is made, “the record on

direct appeal will not be sufficient to show that counsel’s representation was so deficient

and so lacking in tactical or strategic decision-making as to overcome the presumption that


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counsel’s conduct was reasonable and professional.” Bone v. State, 77 S.W.3d 828, 833

(Tex.Crim.App. 2002). This is generally the case because a silent record provides no

explanation for counsel’s actions and therefore will not overcome the strong presumption

of reasonable assistance. Freeman v. State, 125 S.W.3d 505, 506 (Tex.Crim.App. 2003);

Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). The proper procedure

for raising a claim of ineffective assistance is almost always habeas corpus. Aldrich v.

State, 104 S.W.3d 890, 896 (Tex.Crim.App. 2003).


      This case demonstrates the “inadequacies inherent in evaluating ineffective

assistance claims on direct appeal.”        Patterson v. State, 46 S.W.3d 294, 306

(Tex.App.–Fort Worth 2001, pet. ref’d). A motion for a new trial claiming ineffective

assistance of counsel was not filed in the trial court, no hearing was held to determine

whether Appellant’s present complaints of ineffective assistance involved actions that may

or may not have been grounded in sound trial strategy, and the record does not reflect

counsel’s reasons for failing to object to the challenged testimony.


       That said, Appellant’s counsel may not have wanted to highlight these subsequent

incidents to create the appearance Appellant was being open and honest on all questions.

These are sound and plausible trial strategies. See, e.g., Heiman v. State, 923 S.W.2d

622, 626 (Tex.App.–Houston [1st Dist.] 1995, pet. ref’d); Ahmadi v. State, 864 S.W.2d 776,

783 (Tex.App.–Fort Worth 1993, no pet.). Undermining the credibility of the State’s

witnesses was a trial strategy pursued by Appellant’s counsel. He repeatedly challenged


                                            5
Reiley’s credibility during the State’s case and her credibility as well as the APD officers

during Appellant’s testimony. Nevertheless, Appellant’s complaint requires us to speculate

on defense counsel’s trial strategy which we may not do, Rios v. State, 990 S.W.2d 382,

386 (Tex.App.–Amarillo 1999, no pet.), and, in the absence of reasons for counsel’s failure

to object, we cannot conclude his failure to object was “so outrageous that no competent

attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.

2001).


         In addition, Appellant has failed to establish a reasonable probability that, but for

counsel’s unprofessional errors, if any, the result of the proceeding would have been

different. An assault is committed when a “person intentionally, knowingly, or recklessly

causes bodily injury to another, including the person’s spouse.” Tex. Penal Code Ann. §

22.01(a)(1) (Vernon 2003). “Bodily injury” is defined as “physical pain, illness, or any

impairment of physical condition.” Id. at § 1.07(a)(8).        The definition is broad and

encompasses even relatively minor physical contacts as long as they constitute more than

mere offensive touching. Lane v. State, 763 S.W.2d 785, 786 (Tex.Crim.App. 1989)

(physical pain when wrist twisted causing a bruise).


         Appellant does not address the victim’s testimony regarding her injuries which was

corroborated by Sobal, the Austin police officers, and physical evidence–photographs.

Neither does Appellant address his own testimony that he grabbed Reiley by the wrists,

tied her to the chair with the windbreaker in a double knot, tightened the knots when she


                                               6
resisted and, after untying her, fetched ice because her hands were red. Thus, even if the

trial court had ruled that the extraneous conduct of which Appellant complains was

inadmissible, Appellant has not shown a reasonable probability that the result would have

been different. Appellant’s issue is overruled.


                                      Conclusion


      Having overruled Appellant’s issue, the trial court’s judgment is affirmed.




                                                       Patrick A. Pirtle
                                                           Justice

Do not publish.




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