                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00348-CR
                                 No. 10-09-00349-CR
                                 No. 10-09-00350-CR
                                 No. 10-09-00378-CR

DANIEL EDWARD MICKEY,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                        From the 272nd District Court
                            Brazos County, Texas
            Trial Court Nos. 08-04329-CRF-272, 08-04331-CRF-272,
                   08-04332-CRF-272, and 08-04330-CRF-272


                          MEMORANDUM OPINION


      Daniel Edward Mickey appeals from convictions for six offenses.           During a

bench trial on each charge, Mickey changed his plea from not guilty to guilty on all

charges but one, burglary of a habitation. The trial court found him guilty of the lesser-

included offense of criminal trespass. He was sentenced to four terms of imprisonment

for seventeen (17) years in the Texas Department of Criminal Justice – Institutional
Division, two years‖ confinement in the state jail, and one year in the county jail, each to

be served concurrently. Mickey raises one issue on appeal: that he received ineffective

assistance of counsel due to his counsel‖s failure to investigate an insanity defense,

which rendered his plea involuntary. Because we find that the record is insufficient to

make this determination, we affirm the judgments of the trial court.

Standard of Review

        To prevail on an ineffective-assistance claim, Mickey must prove (1) counsel‖s

representation fell below the objective standard of reasonableness; and (2) there is a

reasonable probability that, but for counsel‖s deficiency, the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.

1999). In considering an ineffective-assistance claim, we indulge a strong presumption

that counsel‖s actions fell within the wide range of reasonable professional behavior and

were motivated by sound trial strategy. Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d

at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To overcome this

presumption, a claim of ineffective assistance must be firmly demonstrated in the

record. Thompson, 9 S.W.3d at 814. In most cases, direct appeal is an inadequate vehicle

for raising such a claim because the record is generally undeveloped and cannot

adequately reflect the motives behind trial counsel‖s actions. Rylander v. State, 101

S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813-14.

        In Hill v. Lockhart, the Supreme Court held that the Strickland test applies to

challenges to guilty pleas based on ineffective assistance of counsel. 474 U.S. 52, 58, 106

Mickey v. State                                                                       Page 2
S. Ct. 366, 88 L. Ed. 2d 203 (1985); Ex Parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App.

2009). In the context of a guilty plea, a defendant satisfies the prejudice requirement by

showing that he would not have pleaded guilty and would have insisted on going to

trial. Id. “Where the alleged error of counsel is a failure to advise the defendant of a

potential affirmative defense to the crime charged, the resolution of the ―prejudice‖

inquiry will depend largely on whether the affirmative defense likely would have

succeeded at trial.” Id.

        When the record is silent regarding trial counsel‖s strategy, we will not find

deficient performance unless the challenged conduct was “so outrageous that no

competent attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392

(Tex. Crim. App. 2005); Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex. Crim. App. 2000).

In rare cases, however, the record can be sufficient to prove that counsel‖s performance

was deficient, despite the absence of affirmative evidence of counsel‖s reasoning or

strategy. Id.

        It is critical that Mickey obtain the necessary record in the trial court to rebut the

Strickland presumption that counsel‖s conduct was strategic for purposes of appeal.

Thompson, 9 S.W.3d at 814; McCullough v. State, 116 S.W.3d 86, 92 (Tex. App.—Houston

[14th Dist.] 2001, pet. ref'd.). This kind of record is best developed in a hearing on a

motion for new trial, or by an application for a writ of habeas corpus. See Jackson v.

State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); McCullough, 116 S.W.3d at 92.

Without evidence of the strategy and methods involved concerning counsel‖s actions at

trial, the appellate court will presume sound trial strategy. See Thompson, 9 S.W.3d at

Mickey v. State                                                                         Page 3
814. The record is silent as to any trial strategy by counsel. Except as stated above,

when the record is silent as to counsel‖s reason for failing to act in some manner, the

appellant fails to rebut the presumption that counsel acted reasonably. See Thompson, 9

S.W.3d at 814.

        Mickey did not file a motion for new trial, and there is no record as to his trial

counsel‖s investigations or strategies. Mickey attempts to rely on the decision of the

Court of Criminal Appeals in Ex Parte Imoudu; however, we do not find that decision to

compel the result Mickey seeks.       Imoudu was a habeas proceeding that had been

remanded back to the trial court for a hearing, during which the trial court heard

testimony from a mental health expert, trial counsel for Imoudu, and considered an

affidavit from Imoudu wherein he stated that he would have gone to trial had he been

informed of the availability of an insanity defense. In this case, there is no like record.

We find that without the benefit of trial counsel‖s reasoning or trial strategy, the record

in insufficient to rebut the presumption that his trial counsel acted reasonably. In this

case, this determination would clearly be best made in a habeas proceeding.            We

overrule Mickey‖s sole issue.

Conclusion

         We find that the record is silent as to any strategy or reasoning by trial counsel

regarding his actions during Mickey‖s proceedings. We affirm the judgments of the

trial court.

                                          TOM GRAY
                                          Chief Justice


Mickey v. State                                                                      Page 4
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed August 25, 2010
Do not publish
[CR25]




Mickey v. State                               Page 5
