Opinion filed August 25, 2016




                                      In The


        Eleventh Court of Appeals
                                    __________

                                No. 11-14-00226-CR
                                    __________

                 JARED DANIEL CHAPMAN, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 266th District Court
                              Erath County, Texas
                        Trial Court Cause No. CR14029


                      MEMORANDUM OPINION
      Jared Daniel Chapman entered an open plea of guilty to the offense of felony
driving while intoxicated. The jury assessed his punishment at confinement for a
term of ten years in the Institutional Division of the Texas Department of Criminal
Justice. In a single issue, Appellant contends that he received ineffective assistance
of counsel during the punishment phase of trial. We affirm.
                                 Background Facts
      Officer Caleb Steele of the Stephenville Police Department received a report
of a reckless driver driving from Dublin to Stephenville. He stopped the vehicle and
made contact with the driver—Appellant—in a parking lot of a funeral home in
Stephenville. After performing field sobriety tests on Appellant, Officer Steele
placed him under arrest for driving while intoxicated.         Appellant declined to
voluntarily give a blood sample requested by Officer Steele, whereupon the officer
obtained a search warrant for a blood draw. The analysis of Appellant’s blood
sample revealed a blood alcohol concentration of 0.219.
      The prosecutor questioned Officer Steele extensively about his stop and arrest
of Appellant. The prosecutor offered a recording of the stop into evidence and
played it for the jury. The video included the exchange between Appellant and
Officer Steele in which the officer told Appellant that the Stephenville Police
Department does not take breath specimens, but only takes blood specimens from
suspected intoxicated drivers.     Appellant responded in a profane manner to
Officer Steele, suggesting that the officer shoot him in the head and referring to the
officer as a “demonic piece of s--t.”      The prosecutor also offered records of
Appellant’s prior convictions into evidence, including convictions for criminal
trespass, theft of $1,500 or more but less than $20,000, and three convictions for
burglary of a building. Appellant’s prior driving while intoxicated offenses included
a 2010 conviction from Tarrant County, which included an “open container” finding,
and a 2012 conviction from Comanche County. See TEX. PENAL CODE ANN.
§ 49.04(c) (West Supp. 2016).
      Appellant testified at the punishment phase. He moved to Texas to live with
his grandparents after his parents died in Mississippi as a result of a murder-suicide.
He attributed his prior criminal record to youthful indiscretions. Appellant testified
that he was ashamed of his behavior displayed on the recording of his arrest, and he
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attributed that behavior to his state of intoxication. Appellant was incarcerated in a
state jail facility for twenty-two months. Afterward, he lived and worked in Fort
Worth until losing his job and place to live. Appellant testified about several times
that he had been arrested for driving with a suspended license after his previous DWI
convictions. He also testified about using methamphetamine, including as recently
as one month prior to trial.
      On cross-examination, Appellant admitted that he regularly drove his car
without a license. He also testified that, at the time of his arrest, he did not care if
he lived or died and that he had planned to commit suicide that night when he got
home. Appellant testified that he purchased a bottle of liquor in Proctor and that he
drank it while driving from Dublin to Stephenville.
                                       Analysis
      To determine whether Appellant’s trial counsel rendered ineffective
assistance, we must first determine whether Appellant has shown that his counsel’s
representation fell below an objective standard of reasonableness and, if so, then
determine whether there is a reasonable probability that the result of the proceeding
would have been different but for his counsel’s errors. Strickland v. Washington,
466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55–57 (Tex. Crim.
App. 1986). We must indulge a strong presumption that counsel’s conduct fell
within the wide range of reasonable professional assistance, and Appellant must
overcome the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy. Strickland, 466 U.S. at 689; Tong v. State,
25 S.W.3d 707, 712 (Tex. Crim. App. 2000). An allegation of ineffective assistance
of counsel must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814
(Tex. Crim. App. 1999).


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      With respect to allegations of ineffective assistance of counsel, the record on
direct appeal is generally undeveloped and rarely sufficient to overcome the
presumption that trial counsel rendered effective assistance. Bone v. State, 77
S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813–14. The
Court of Criminal Appeals has said that “trial counsel should ordinarily be afforded
an opportunity to explain his actions before being denounced as ineffective.”
Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). If trial counsel did
not have an opportunity to explain his actions, we will not find deficient performance
unless the challenged conduct 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).
We note at the outset of our analysis that, although Appellant filed a motion for new
trial, the motion did not allege ineffective assistance of counsel, nor was a hearing
held on the motion.      Accordingly, the appellate record does not contain an
explanation from trial counsel concerning his actions.
      Appellant asserts that trial counsel was ineffective in the following respects:
(1) that trial counsel did not properly inform Appellant about a plea bargain offer;
(2) that trial counsel made “multiple inappropriate comments and derogatory
remarks” about Appellant; and (3) that trial counsel did not make an opening
statement or cross-examine the State’s witnesses.
      With respect to the matter of the plea bargain offer, Appellant references an
exchange between Appellant and the trial court during sentencing. When the trial
court asked Appellant if he had any reason why sentence should not be imposed,
Appellant responded: “I didn't realize that the plea bargain was not still available, I
wanted to take it, but, I mean, I didn’t know that it was removed.” This is all of the
information in the record pertaining to a plea bargain offer. Appellant contends that
information “alone” is enough for this court to determine that he did not receive an
adequate explanation of the plea bargain offer. We disagree. As noted previously,
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the record must affirmatively demonstrate the alleged ineffectiveness.             See
Thompson, 9 S.W.3d at 814.           The record before us does not affirmatively
demonstrate deficient conduct on the part of trial counsel because there is no
evidence of the communications exchanged between Appellant and trial counsel
about any plea bargain offers. Furthermore, the trial court explained to Appellant,
before it accepted his guilty plea, that “I understand that there is no plea bargain
agreement in this matter so that there’s nothing limiting --huh-- the jury’s discretion
except the statute, 2 to 10 years, and up to a $10,000 fine.” Appellant advised the
trial court that he understood that this was the situation.
      The comments by trial counsel that Appellant challenges were made during
closing argument. The type of closing argument defense chooses to make is an
inherently tactical decision “based on the way a trial is unfolding, the trial strategy
employed, the experience and judgment of the defense attorney, and other factors.”
Taylor v. State, 947 S.W.2d 698, 704 (Tex. App.—Fort Worth 1997, pet. ref’d).
“[C]ounsel has wide latitude in deciding how best to represent a client, and deference
to counsel’s tactical decisions in his closing presentation is particularly important
because of the broad range of legitimate defense strategy at that stage.”
Yarborough v. Gentry, 540 U.S. 1, 5–6 (2003) (per curiam). Judicial review of an
attorney’s summation is therefore highly deferential. Id. at 6.
      Appellant contends that trial counsel made the following comments that
disparaged him to the jury:
      1. “[W]ell, I sit in my apartment and drink peppermint schnapps until
         I get the courage to kill myself . . . .”
      2. Now, he hasn’t been caught drinking and driving since April, and it
         may be the last one or he may kill [the prosecutor] going to the
         Rangers game the day after he gets out, you can’t predict the future,
         I mean, things happen . . . .”
      3. I mean, he could have done it, I guess, three hundred and sixty-four
         days a year and not got caught . . . .”
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      4. “[W]ell, how many drunks read the paper . . . .”
      5. “This is not the worst human being you ever saw . . . .”
As noted previously, trial counsel has not had an opportunity to elaborate on his trial
strategy in making these comments. In the absence of this opportunity, we are
unable to conclude that his arguments constituted deficient performance.
      We note that the facts from the perspective of the defense were daunting given
Appellant’s criminal history, his high level of intoxication, the fact that he was
drinking liquor while driving immediately prior to his arrest, his use of drugs since
the arrest, his conduct at the time of his arrest, and his refusal to abstain from driving
even though he did not have a valid driver’s license. Furthermore, some of the
arguments were in response to closing arguments made by the prosecutor. For
example, the second comment, which was followed with the comment that “sober
people kill other people in car wrecks,” was made in response to the prosecutor’s
plea to take Appellant off the road. The third comment was followed by a statement
suggesting that the chances of a person driving while intoxicated and not being
caught by law enforcement are less now because “these guys are good.” The fourth
comment appears to have been made to suggest that a maximum sentence will have
little deterrent effect on others because “drunks” do not “read the paper.”
      Finally, Appellant complains of trial counsel’s decision not to make an
opening statement and to only ask one question in cross-examining the State’s
witnesses. These matters are tactical decisions that are inherently a matter of trial
strategy as the case unfolds at trial. See Taylor, 947 S.W.2d at 704. As is the case
with Appellant’s other complaints, we are unable to assess the reasonableness of trial
counsel’s performance due to the absence from the appellate record of an
explanation of his trial strategy. Moreover, this was a case wherein Appellant
pleaded guilty to the charged offense. Accordingly, the only matter for the factfinder
to decide was Appellant’s punishment.           The State called three witnesses: the
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arresting officer, the chemist that analyzed Appellant’s blood sample, and a
fingerprint expert that was called to prove up Appellant’s prior convictions. The
bulk of their testimony did not deal with punishment, other than to simply outline
the details of Appellant’s arrest for driving while intoxicated.
      As noted in Thompson, an allegation of ineffective assistance of counsel must
be firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness. 9 S.W.3d at 814. We conclude that the record in this case
does not affirmatively demonstrate that Appellant received ineffective assistance of
counsel. We overrule Appellant’s sole issue. In doing so, we note that Appellant
has included a request, in the alternative, for us to essentially abate the appeal for
the purpose of remanding the case to the trial court to conduct an evidentiary hearing
on his ineffective assistance claim. We decline this request. A hearing on a writ of
habeas corpus is the preferable forum for developing a record of ineffective
assistance in criminal cases. See Massaro v. United States, 538 U.S. 500, 505
(2003); Freeman v. State, 125 S.W.3d 505, 506–07 (Tex. Crim. App. 2003);
Thompson, 9 S.W.3d at 813–14.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


August 25, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

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