                                   NO. 07-04-0563-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL A

                                  SEPTEMBER 8, 2005

                          ______________________________

                        RONNIE LEE GONZALES, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                        _________________________________

               FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                  NO. B15369-0402; HONORABLE ED SELF, JUDGE
                        _______________________________


Before REAVIS and CAMPBELL and HANCOCK, JJ.


                                 MEMORANDUM OPINION


       Appellant, Ronnie Lee Gonzales, appeals from a conviction, pursuant to a guilty

plea, of aggravated sexual assault of a child and two counts of indecency with a child by

contact and jury sentence of 65 years confinement and a $10,000.00 fine. Overruling

appellant’s issues, we affirm.


       Appellant was indicted for aggravated sexual assault of a child and two counts of

indecency with a child, alleged to have occurred on December 10, 2003. The child in
question was the four and one-half year old daughter of appellant’s girlfriend. Trial counsel

was hired by appellant and the case proceeded to trial. Appellant entered a plea of guilty

and a jury was selected to assess punishment.


       Appellant presents a single issue claiming that the failure of appellant’s counsel to

strike venireperson Tirey from the jury constituted ineffective assistance of counsel

requiring reversal. We disagree.


       To prevail on a claim of ineffective assistance of counsel, appellant must meet the

two pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). See Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986) (adopting

Strickland as the applicable standard under Texas Constitution). Appellant must first

demonstrate that the performance of counsel was deficient. To succeed in this regard,

appellant must show that counsel’s representation fell below an objective standard of

reasonableness when viewed at the time of counsel’s conduct and compared to prevailing

professional norms. See Strickland, 466 U.S. at 687-91.         Additionally, appellant must

show that there is a reasonable probability that the result of the proceeding would have

been different but for the errors of counsel. Id. at 694. A reasonable probability is one that

undermines confidence in the outcome. Id. We begin with a presumption that counsel

rendered adequate assistance. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.

1996). Appellant, then, has the burden to prove that counsel’s assistance was ineffective

by a preponderance of the evidence. Patrick v. State, 906 S.W.2d 481, 495 (Tex.Crim.App.

1995). We review the totality of the representation to determine counsel’s effectiveness



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and any allegations of ineffectiveness must be firmly founded in the record. Thompson v.

State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999).


       Appellant contends that counsel neither requested that venireperson Tirey be struck

for cause nor used a peremptory challenge on Tirey and that this failure constituted

ineffective assistance of counsel mandating reversal. Counsel asked each venireperson

to designate what they thought was the most important purpose of punishment from a list

of three purposes. Tirey opined that protection of society is most important. Appellant

contends, on appeal, that this answer and the fact that Tirey was the newly elected County

Attorney for Hale County should have been a warning to counsel that Tirey would do

everything in his power to incarcerate appellant, yet counsel did nothing to try and

disqualify him for cause. However, this argument ignores several important facts in the

record. First, 26 members of the jury panel answered the question exactly or substantially

the same as Tirey. Second, there is no evidence in the record that Tirey, or any of the

other venirepersons, could not be fair and impartial. Rather, appellant assumes that since

Tirey is the newly elected County Attorney he is inherently biased. Such an assumption

is not supported by the record and, therefore, appellant has not met his burden. Patrick,

906 S.W.2d at 495. Third, a review of the total record reveals that counsel disqualified three

other members of the jury panel for not being able to consider the entire punishment range.

This is some indication that counsel was representing appellant in a manner consistent with

prevailing professional norms. Further, the record contains numerous pretrial motions and

trial objections upon which counsel was able to obtain favorable rulings.




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       Finally, appellant finds fault in the failure of counsel to use a peremptory challenge

against Tirey. However, appellant’s contention is no more than an invitation to second

guess the trial strategy of counsel. The appellant has the duty to present a record with

evidence of the reasons that the allegedly ineffective assistance was not trial strategy.

Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). If the record does not

present evidence of the reasons for the questioned actions or omissions, then the appellate

court would have to speculate as to the reasons. Id. A decision based on speculation

would be based on no evidence. Id. As the record before us is silent regarding the

reasons counsel did not use a peremptory challenge against Tirey, we will not speculate

as to what those reasons were or what trial strategy was being employed by counsel.


       In short, the totality of the circumstances do not reveal that counsel’s performance

fell beneath objective standards of reasonableness. Strickland, 466 U.S. at 690.

Accordingly, appellant cannot meet the first prong of Strickland. Inasmuch as appellant has

failed to show that counsel’s actions were deficient, there is no need to conduct the harm

analysis. See TEX . R. APP . P. 47.1


       The judgment of the trial court is affirmed.




                                                 Mackey K. Hancock
                                                     Justice


Do not publish.



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