                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


 DARIE WAYNE SIMS,                               §
                                                                 No. 08-07-00023-CR
                   Appellant,                    §
                                                                    Appeal from the
 v.                                              §
                                                              194th Judicial District Court
                                                 §
 THE STATE OF TEXAS,                                            of Dallas County, Texas
                                                 §
                   Appellee.                                     (TC# F-0663651-LM)
                                                 §


                                           OPINION

       Darie Sims appeals his conviction for unlawful possession of a controlled substance. He

was sentenced to 20 years confinement in the Institutional Division of the Texas Department of

Criminal Justice. In a single issue, Appellant argues he is entitled to a new trial because he was

denied effective assistance of counsel during sentencing. We affirm.

       Appellant elected to be sentenced by a jury. Appellant plead “not true,” to the

enhancement paragraph in the court’s charge, and the State proceeded to offer evidence of

Appellant’s twenty-eight prior convictions. The State offered Exhibits Four through Thirty-One

and the testimony of Richard Hamb, a Dallas County Sheriff’s Office Identification Section

fingerprint expert. Mr. Hamb testified that he obtained Appellant’s fingerprints several days

prior to trial in order to compare them to the prints identifying the offender convicted of the prior

offenses. According to Mr. Hamb’s analysis, the Appellant’s fingerprints matched those in the

prior offense files, and he concluded that Appellant was the same individual who was convicted

on twenty-seven of the prior occasions based on his fingerprint analysis. As for the
twenty-eighth conviction, an identity misuse case, Mr. Hamb testified that the file fingerprint was

not sufficient for a comparison, but he was able to identify Appellant as the defendant in that

case based on his involvement in the prior investigation. The State also introduced Exhibits

Thirty-Two and Thirty-Three; summaries of the convictions Mr. Hamb linked to Appellant.

Appellant’s attorney did not object to the introduction of the evidence linking Appellant to the

prior offenses. The jury found the enhancement paragraph “true” and sentenced Appellant to

twenty years’ imprisonment.

       Appellant presents a single issue for our review. He contends that he received ineffective

assistance of counsel when his attorney failed to object to the admission of State’s Exhibits Four

through Thirty-One. Specifically, Appellant contends that his attorney should have objected to

the evidence of his prior convictions on the basis that three of the exhibits were lacking

judgments and sentences. He also contends that his attorney should have objected to the

admission of the conviction summaries.

       We review claims of ineffective assistance of counsel under a two-pronged test. First, an

appellant must establish counsel’s performance fell below an objective standard of

reasonableness under prevailing professional norms. Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Mallet v. State, 65 S.W.3d 59, 62-3

(Tex.Crim.App. 2001). Second, the appellant must establish that counsel’s deficient

performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Jackson v.

State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Prejudice is established by a showing that

there is a reasonable probability that but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Mallet, 65


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S.W.3d at 62-3. A reasonable probability is a probability sufficient to undermine confidence in

the outcome. Mallet, 65 S.W.3d at 63. Claims of ineffective assistance must be proved by a

preponderance of the evidence. Bone v. State, 77 S.W.3d 828, 835 (Tex.Crim.App. 2002).

       When we review a claim of ineffective assistance, we must indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable, professional assistance, and the

appellant must overcome the presumption that the challenged conduct can be considered sound

trial strategy. Jackson, 877 S.W.2d at 771. Allegations of ineffectiveness must be firmly

founded in the record. Mallet, 65 S.W.3d at 65. The record on direct appeal will generally be

insufficient to show that counsel’s representation was so deficient as to meet the first prong of

the Strickland analysis because the reasonableness of counsel’s choices often involve facts that

do not appear in the appellate record. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App.

2003). An appellant challenging trial counsel’s performance, therefore, faces a difficult burden

and a substantial risk of failure. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999).

       Appellant argues that he received ineffective assistance of counsel when his attorney

failed to object to the admission of evidence of his prior offenses. However, the record does not

demonstrate that counsel had an unprofessional reason for failing to object, nor does it contain an

instance where counsel had an opportunity to explain his decision. To overcome the first prong

of Strickland, the appellant must produce a record affirmatively demonstrating the objectively

unprofessional conduct. See Bone, 77 S.W.3d at 835. Without such a record, we are bound by

the presumption that counsel’s conduct fell within the wide range of reasonable professional

assistance, and that the challenged action can be considered reasonable trial strategy. Jackson,

877 S.W.2d at 771. In addition, without proof of unprofessional conduct we cannot determine


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that Appellant’s defense was prejudiced by the representation. Strickland, 466 U.S. at 687, 104

S.Ct. at 2064; Jackson, 877 S.W.2d at 771. Therefore, we overrule Appellant’s sole issue and

affirm the judgment.


May 8, 2008
                                            DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Carr, JJ.

(Do Not Publish)




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