                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-13-00576-CR


SHAWN PAUL GARNER                                                   APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                     TRIAL COURT NO. CR12480

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                        MEMORANDUM OPINION 1

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      Upon his plea of guilty, a jury convicted Appellant Shawn Paul Garner of

burglary of a building and assessed his punishment at twenty-two months’

confinement in a state jail facility and a $10,000 fine. The trial court sentenced

him accordingly. Appellant brings a single point on appeal, arguing that trial

counsel rendered ineffective assistance of counsel by failing to object to

      1
       See Tex. R. App. P. 47.4.
testimony relating to a letter that was never offered into evidence. Because we

hold that Appellant did not sustain his burden of proving ineffective assistance of

trial counsel, we overrule his point and affirm the trial court’s judgment.

      Appellant, the sole defense witness, had testified that he was married and

trying to reconcile with his estranged wife. On cross-examination, the prosecutor

asked him who “Jen” was. Appellant admitted that she was his girlfriend. Then,

the prosecutor asked Appellant about the contents of a letter, which Appellant

had admitted writing. The letter contained notations in Appellant’s handwriting

that he described as fantasies. Among the notations were “Virgin Diary, Hungry

Virgin, Small Town Girl”; “Fantasy 14, Naughty Nymph”; “Daddy’s Little Girl”;

“Fantasy about [Appellant] fondling and touching her 15-year-young, tender,

horny sleeping body”; phone numbers; and pictures torn or cut from a magazine.

Trial counsel made no objection to the prosecutor’s inquiries about these

notations.

      The State argues that the letter and tear sheets were admitted into

evidence in that they are contained in State’s Exhibit Number 4. When the State

offered that exhibit, the prosecutor laid the following predicate,

      Q     I’m going to show you State’s Exhibit Number 1, 2, 3 and 4.
      Are those CDs containing photographs at the four different locations
      that we just mentioned? (Indicating)

      A      Yes, sir.

      Q     And do those photographs fairly and accurately represent
      what you found at those locations during your investigation in this
      case?


                                          2
      A     Yes, they do.

      No mention was made of the letter in relation to State’s Exhibit 4. The CD

was ostensibly offered to show the presence of stolen property in the motel room.

Trial counsel stated that he had no objection to the admission of the exhibit.

When the State cross-examined Appellant about the exhibit, there was no

mention of the letter. Examining the contents of the exhibit carefully, we note

that, although the letter and tear sheets were not offered or admitted into

evidence, pictures of the letter and tear sheets are contained on the exhibit.

      For an appellate court to find that counsel was ineffective, counsel’s

deficiency must be affirmatively demonstrated in the trial record. 2 We must not

engage in retrospective speculation. 3 When direct evidence is not available, we

must assume that counsel had a strategy

      if any reasonably sound strategic motivation can be imagined. In
      making an assessment of effective assistance of counsel, an
      appellate court must review the totality of the representation and the
      circumstances of each case without the benefit of hindsight. While a
      single error will not typically result in a finding of ineffective
      assistance of counsel, an egregious error may satisfy the Strickland
      prongs on its own.

            . . . . [T]his is a difficult hurdle to overcome: the record must
      demonstrate that counsel’s performance fell below an objective
      standard of reasonableness as a matter of law, and that no




      2
       Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
      3
       Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).



                                         3
      reasonable trial strategy could justify trial counsel’s acts or
      omissions, regardless of his or her subjective reasoning. 4

The Texas Court of Criminal Appeals has further explained,

      Ineffective-assistance-of-counsel claims are governed by the familiar
      Strickland framework: To prevail, the defendant must show that
      counsel’s performance was deficient and that this deficient
      performance prejudiced the defense. An attorney’s performance is
      deficient if it is not within the range of competence demanded of
      attorneys in criminal cases as reflected by prevailing professional
      norms, and courts indulge in a strong presumption that counsel’s
      conduct was not deficient. A defendant suffers prejudice if there is a
      reasonable probability that, absent the deficient performance, the
      outcome would have been different. A reasonable probability is a
      probability sufficient to undermine confidence in the outcome. It is a
      rare case in which the trial record will by itself be sufficient to
      demonstrate an ineffective-assistance claim. If trial counsel has not
      been afforded the opportunity to explain the reasons for his conduct,
      we will not find him to be deficient unless the challenged conduct
      was so outrageous that no competent attorney would have engaged
      in it. 5

      Although no explanation for failing to object springs readily to mind, we

cannot say that no reasonable strategy could justify trial counsel’s decision not to

object.

      Because the record is inadequate to demonstrate that trial counsel

rendered ineffective assistance to Appellant under the appropriate standard, we

overrule his sole point and affirm the trial court’s judgment.




      4
          Id. at 143 (citations omitted).
      5
       Nava v. State, 415 S.W.3d 289, 307–08 (Tex. Crim. App. 2013) (internal
quotation marks and citations omitted).


                                            4
                                            /s/ Lee Ann Dauphinot
                                            LEE ANN DAUPHINOT
                                            JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

GABRIEL, J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 12, 2015




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