                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-10-00425-CR

JASON WESLEY TATE,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                           From the 19th District Court
                            McLennan County, Texas
                           Trial Court No. 2010-398-C1


                          MEMORANDUM OPINION


      Jason Wesley Tate was convicted of evading arrest with a motor vehicle which

was a third degree felony because Tate had a prior conviction for evading. See TEX.

PENAL CODE ANN. § 38.04(b)(2)(A) (West 2011). He was sentenced to nine years in

prison. In his sole issue, Tate argues that his trial counsel was ineffective for not

requesting an instruction on a lesser included offense. We affirm.

      To prevail on a claim of ineffective assistance of counsel, an appellant must show

that (1) counsel's representation fell below an objective standard of reasonableness, and

(2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Unless an appellant can prove both

prongs, we must not find counsel's representation to be ineffective. Id. at 687.

        There is a strong presumption that counsel's performance fell within the wide

range of reasonably professional assistance. Lopez v. State, No. PD-0481-10, 2011 Tex.

Crim. App. LEXIS 826, *9 (Tex. Crim. App. June 15, 2011); Robertson v. State, 187 S.W.3d

475, 483 (Tex. Crim. App. 2006) (citing Strickland, 466 U.S. at 689). In order for us to find

that counsel was ineffective, counsel's deficiency must be affirmatively demonstrated in

the trial record. Lopez, 2011 Tex. Crim. App. LEXIS 826 at *10; Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999). When such direct evidence is not available, we

will assume that counsel had a strategy if any reasonably sound strategic motivation

can be imagined. Lopez v. State, 2011 Tex. Crim. App. LEXIS 826, at *10. Further, on

direct appeal, the record is usually inadequately developed and cannot adequately

reflect the failings of trial counsel for us to fairly evaluate the merits of such a serious

allegation. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

        Tate contends that trial counsel should have requested an instruction on the

offense of fleeing a police officer. See TEX. TRANSP. CODE ANN. § 545.421 (West 2011).

The record is silent as to why counsel did not request such an instruction. Although

Tate contends that fleeing a police officer is a lesser included offense of evading arrest

in a motor vehicle, counsel may have believed that it is not. See Farrakhan v. State, 247

S.W.3d 720, 722-23 (Tex. Crim. App. 2008) (The Court of Criminal Appeals approved of

the Fort Worth Court of Appeals’ decision that the offense of fleeing a police officer was



Tate v. State                                                                          Page 2
not a lesser-included offense of evading arrest or detention.); see also McKithan v. State,

324 S.W.3d 582, 593 (Tex. Crim. App. 2010).

        Furthermore, we are not unaware of the defense strategy when the defendant

believes the State has overcharged the offense. It is a perfectly valid trial strategy for a

defense counsel to forgo a lesser included charge when the defense believes that the

State has charged a higher offense than the State can prove beyond a reasonable doubt.

By this strategy, the defense forgoes the objection or request for a verdict on a lesser

charge so that if the jury does not convict on the charged offense, the defendant is

acquitted. The State forgoes the submission of the lesser charge in the hopes of nudging

the jury towards the conviction on the higher charge by not giving them a lesser charge

on which to find the defendant guilty. The State’s strategy is to not give the jury an

option between the higher charge and a lesser charge but only to have the option of

conviction on the higher charge or acquit. On the other side, the defense, by not

compelling the inclusion of the lesser included offense in the charge, weighs the

alternatives and decides to run the risk that the jury will acquit rather than convict on

the greater offense.    That is why it is called a strategy and is not automatically

ineffective assistance of counsel. Thus, even if fleeing a police officer were a lesser

included offense of evading arrest with a motor vehicle, we do not know, from this

record, if counsel was pursuing a trial strategy.

        Accordingly, because trial counsel’s alleged deficiency is not affirmatively

demonstrated in the record, Tate has failed to meet his burden under the first prong of

Strickland. His sole issue is overruled.

Tate v. State                                                                         Page 3
        Having overruled his sole issue on appeal, we affirm the trial court’s judgment.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 13, 2011
Do not publish
[CR25]




Tate v. State                                                                       Page 4
