                            .Si   .   .. &




                           Qlcurt at Appeals
                     mutf Etsirtri of ®exns at lallas
                                             JUDGMENT

ANTHONY DEAN SNARE, Appellant                     Appeal from the Criminal District Court
                                                  No. 2 of Dallas County, Texas. (Tr.Ct.No.
No. 05-95-01268-CR                                F94-60039-TI).
                                                  Opinion delivered by Justice Chapman,
THE STATE OF TEXAS, Appellee                      Justices    Morris    and   Hankinson
                                                  participating.



      Based on the Court's opinion of this date, the judgment of the trial court is
AFFIRMED.




Judgment entered February 28, 1997.




                                                  RON CHAPMAN
                                                  JUSTICE
AFFIRM and Opinion Filed February 28, 1997




                                              In The

                                  (Uimrt of Appeals
                         iTtftlr Itsirtrt of Gkxas at lallas
                                      No. 05-95-01268-CR



                             ANTHONY DEAN SNARE, Appellant

                                                V.


                               THE STATE OF TEXAS, Appellee


                      On Appeal from the Criminal District Court No. 2
                                      Dallas County, Texas
                              Trial Court Cause No. F94-60039-TI



                                        OPINION

                       Before Justices Chapman, Morris, and Hankinson
                                  Opinion By Justice Chapman

          Appellant appeals his jury conviction for aggravated robbery. The jury assessed

punishment, enhanced by two prior felony convictions, at fifty years' confinement. In his

sole point of error, appellant contends he received ineffective assistance of counsel. We

affirm.


          Appellant contends his trial counsel was ineffective and that counsel's ineffectiveness
V




    caused the jury to assess a greater sentence. Appellant complains of errors during voir dire

    and errors during punishment.

           The proper standard of review to measure counsel's ineffectiveness during voir dire

    is that set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Chambers v. State, 903

    S.W.2d 21, 36 (Tex. Crim. App. 1995). Under this standard, an appellant must first

    establish that his counsel's representation fell below an objective standard of reasonableness.

    Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Hernandez, 726 S.W.2d 53,

    55 (Tex. Crim. App. 1986). The appellant must then show a reasonable probability exists

    that, but for counsel's errors, the result of the proceeding would have been different.

    Jackson, 877 S.W.2d at 771; Hernandez, 726 S.W.2d at 55.

           The proper standard to review counsel's performance during punishment, however,

    is the standard set forth in Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980). See Ex

    parte Walker, 794 S.W.2d 36, 37 (Tex. Crim. App. 1990). We determine whether counsel

    was reasonably likely to render effective assistance and whether counsel actually rendered

    reasonably effective assistance. Craig v. State, 825 S.W.2d 128, 130 (Tex. Crim. App. 1992).

           Several considerations are applicable to both standards. Under either standard, we

    view the totality of counsel's representation and do not judge counsel's performance in

    hindsight. Exparte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991); Davis v. State, 831

    S.W.2d 839, 843 (Tex. App.--Dallas 1992, pet. ref'd); Ybarra v. State, 890 S.W.2d 98, 111

    (Tex. App.--San Antonio 1994, pet. ref'd). Both standards require the appellant to prove
ineffective assistance of counsel by a preponderance of the evidence. Moore v. State, 694

S.W.2d 528, 531 (Tex. Crim. App. 1985). Further, the record must support a claim of
ineffective assistance. See Johnson v. State, 691 S.W.2d 619, 627 (Tex. Crim. App. 1984),

cert, denied, 474 U.S. 865 (1985). Finally, we are not permitted to inquire into trial strategy

unless no possible basis exists in strategy or tactics for trial counsel's actions. Johnson v.

State, 614 S.W.2d 148, 152 (Tex. Crim. App. [Panel Op.] 1981); Weeks v. State, 894 S.W.2d

390, 391 (Tex. App.-Dallas 1994, no pet.).

       Appellant pleaded not guilty to aggravated robbery. After hearing evidence on guilt-

innocence, the juryfound appellant guilty of the offense. Appellant testified at punishment

and admitted he committed the offense. The jury assessed punishment at fifty years'

confinement.


       Appellant contends counsel was ineffective during voir dire because counsel

questioned the venire on issues concerning guilt-innocence. Specifically, counsel asked

questions concerning the credibility of police officers and the burden of proof. According

to appellant, these questions would alienate the jury because he was "obviously guilty" and

would admit he was guilty in the punishment phase. Appellant asks that we judge counsel's

performance in hindsight, which we are not permitted to do. See Felton, 815 S.W.2d at 735.

Further, appellant chose to plead not guilty and have the jury determine guilt-innocence.

We cannot, therefore, conclude counsel was ineffective for questioning the venire on issues

concerning guilt-innocence.




                                              -3-
         Appellant next complains that his trial attorney did not question the venire on

punishment issues. The trial court did, however, question the venire concerning theirability

to consider the full range of punishment. Thereafter, the trial court granted five of counsel's

strikes for cause against venirepersons who could not consider the minimum punishment.

Appellant nevertheless maintains counsel should have argued issues which the venire might

consider in mitigation of punishment.                     The record, however, is silent with respect to

counsel's reasons for not questioning the venire on mitigation issues. See Jackson v. State,

877 S.W.2d at 771. We cannot conclude there is no plausible basis for counsel's actions.1

See Weeks, 894 S.W.2d at 392.

         Appellant also asserts that reasonably effectivecounselwould have pleaded him guilty

before the jury. However, the decision to plead guilty or not guilty is the personal decision

of the accused. Jackson v. State, 766 S.W.2d 504, 508 (Tex. Crim. App. 1985); Ramer v.

State, 714 S.W.2d 44, 46 (Tex. App.-Dallas, pet. ref'd). Appellant has neither asserted,

nor shown, that counsel advised him to plead not guilty.

          Finally, appellant contends counsel was ineffective for failing to investigate the facts

and failing to interview witnesses. He asserts counsel failed to discover appellant had a drug

problem and a difficult childhood. The record is silent with respect to counsel's preparation

for trial. The record likewise does not show counsel was not aware that appellant used



      Counsel may, for example, have decided not to question the venire on mitigation issues to avoid any suggestion that counsel
believed his client was guilty.




                                                              -4-
                                                   ^°f^iS»i^:'^>#:«*^:-*i'S'




drugs and had a difficult childhood. Evidence was, in fact, presented at punishment showing

that appellant's fatherwas "tyrannical" and that appellant used drugs. Although counsel did

not focus on this evidence, counsel's punishment argument shows it was her strategy to stress

that appellant had admitted his guilt and did not make excuses for his actions. We conclude

appellant has not met his burden to show counsel was ineffective. See Runnels v. State, 860

S.W.2d 545, 547 (Tex. App.-Beaumont 1993, pet. ref'd).                         Accordingly, we overrule

appellant's sole point of error and affirm the trial court's judgment.




                                                        RON CHAPMAN
                                                        JUSTICE




Do Not Publish
Tex. R. App. P. 90
951268F.U05




                                             -5-
Chief Justice
  Linda Thomas                                                                                  David Pagan
Justices                                                                                    business administrator
  Sue Lagarde                                                                                   (214) 712-3434
  Ed Kinkeade
  John Ovard
  Frances Maloney                                                                               Lisa Rombok
  Ron Chapman                            (£aurt of Appeals                                   clerk of the court
  Joseph B. Morris                                                                              (214) 712-3450
  Mark Whittington               Wxftlj Itstrtrt of Okxas at Satlas
  Tom James                            George L. Allen Sr. Courts Building
  Carolyn Wright                                                                                  Facsimile
                                               600 Commerce Street
  Deborah G. Hankinson                                                                          (214) 745-1083
                                             Dallas, Texas 75202-4658
  Jim Moseley
  David Bridges
                                                   (214) 712-3400




                                                   May 22,1997

       R. D. Rucker
       Attorney at Law
       P.O. Box 222167
       Dallas, TX      75222-2167

       April E. Smith
       Assistant District Attorney
       Frank Crowley Courts Building
       133 North Industrial Blvd., LB-19
       Dallas, TX 75207

       RE:        Court of Appeals Number:     05-95-01268-CR
                  Trial Court Case Number:     F94-60039-TI


       Style: Snare, Anthony Dean
                  v.

                  The State of Texas


           Dear Counsel:


           Pursuant to Rule 86 of the Texas Rules of Appellate Procedure, this Court has this day issued a
           Mandate in accordance with the Judgment and delivered it to the Clerk of the Trial Court.



                                        Respectfully Yours,
                                        Lisa Rombok
                                        Clerk of the Court


                                        Stephanie Hughes
