                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                               NO. 09-17-00167-CR
                           ____________________

                   RALPH EUGENE BRIDWELL, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee

_______________________________________________________            ______________

                    On Appeal from the 128th District Court
                           Orange County, Texas
                         Trial Cause No. A160313-R
________________________________________________________             _____________

                          MEMORANDUM OPINION

      After pleading guilty to an indictment charging him with intoxication

manslaughter,1 Ralph Eugene Bridwell filed an appeal in which he argues that his

plea was not voluntary. In one issue, Bridwell argues that he received ineffective



      1
        See Tex. Penal Code Ann. § 49.08(a) (West 2011) (a person commits the
offense of intoxication manslaughter if he operates a motor vehicle in a public place
while intoxicated and, by reason of that intoxication, causes the death of another by
accident or mistake).
                                         1
assistance of counsel because his trial attorney failed to reasonably investigate

certain matters, to develop a potential defense, and to properly advise him regarding

the punishment the he could receive based on the circumstances in his case. Because

the record on appeal fails to overcome the strong presumption that Bridwell received

reasonable professional assistance, we affirm the trial court’s judgment.

                                     Background

      Late one night in October 2015, a car Bridwell was driving struck a man on a

bicycle while both the car and the bicycle were travelling in a northeasterly direction

on the shoulder of State Highway 12. When the investigating officer spoke with

Bridwell at the scene, Bridwell agreed to provide the officer with a sample of his

blood. Two other police officers accompanied Bridwell to a hospital, where a

registered nurse obtained the sample. Three days later, the officer in charge of the

investigation sent the sample to the Department of Public Safety’s Crime Lab, which

found that it contained 0.094 grams of alcohol per 100 milliliters of blood. 2

      In August 2016, a grand jury indicted Bridwell for intoxication manslaughter.

Seven months later, without the benefit of a plea bargain, Bridwell appeared in court




      2
        See id. § 49.01(2)(B) (West 2011) (providing that a person is intoxicated if
his blood alcohol concentration is 0.08 or more).

                                          2
and pleaded guilty to that charge.3 One month later, during Bridwell’s punishment

hearing, Bridwell pleaded true to the two felony enhancement allegations in his

indictment.4 After pleading true to the allegations that he had committed two prior

felonies, the trial court advised Bridwell his punishment range was “a minimum of

25 years confinement in the Texas Department of Criminal Justice-Institutional

Division and a maximum of life[.]” Bridwell then called four witnesses to testify

during the punishment phase of his trial. After hearing the punishment evidence, the

trial court sentenced Bridwell to a thirty-five-year sentence.5

      In the brief that Bridwell filed to support his appeal, he argues that his trial

attorney (1) failed to properly investigate his case, (2) performed deficiently because

he failed to develop potential defenses to the State’s theory claiming that Bridwell

was guilty of intoxication manslaughter, and (3) failed to advise Bridwell that




      3
       See id. § 49.08(a), (b) (West 2011) (providing intoxication manslaughter is
a second-degree felony).
      4
       The enhancement allegations assert that in 2006, Bridwell was convicted on
a charge of felony driving while intoxicated, and that in 1994, he was convicted of
a second felony for aggravated assault.
      5
         See id. § 12.42(d) (West Supp. 2018) (authorizing a maximum punishment
of life in prison under the circumstances established by the record in Bridwell’s
case).
                                          3
pleading true to the enhancement allegations in the indictment would subject him to

the range of punishment that the trial court considered when assessing his sentence.

                                         Analysis

      To establish a claim of ineffective assistance, the defendant must first

establish that his attorney made errors so serious that the attorney failed to function

as “counsel” as guaranteed by the Sixth Amendment. 6 Establishing that such serious

error occurred is difficult without a record that is sufficient to overcome the “strong

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

professional assistance.” 7 Second, the defendant must show that “the deficient

performance prejudiced the defense.”8 In the context of a guilty plea, “the

defendant’s burden is to demonstrate a reasonable probability that the deficient

performance caused the defendant to waive a judicial proceeding that he was

otherwise entitled to have.”9




      6
          Strickland v. Washington, 466 U.S. 668, 687 (1984).
      7
        Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing
Strickland, 466 U.S. at 690).
      8
          Strickland, 466 U.S. at 687.
      9
          Miller v. State, 548 S.W.3d 497, 499 (Tex. Crim. App. 2018).

                                            4
      To overcome the presumption that the trial attorney provided the defendant

with reasonable professional assistance, the evidence showing the trial attorney was

ineffective must be “‘firmly founded in the record and the record must affirmatively

demonstrate the alleged ineffectiveness.’” 10 Ordinarily, when the defendant failed to

raise a claim of ineffective assistance in the proceedings that took place in the trial

court, the record before the appellate court will seldom have been sufficiently

developed to allow the appellate court to conclude that trial counsel made errors so

serious that they violated the Strickland standards.11 If the trial attorney who

represented the defendant was never given the opportunity to explain the conduct

that the defendant is challenging in his appeal, appellate courts generally presume

that had such an opportunity been made available, the attorney’s explanation would

have shown that the choices made in defending the case were decisions that

represented reasonable choices between different trial strategies.12

      Here, the record does not show that Bridwell filed a motion for new trial. The

record also contains no evidence showing what Bridwell’s trial attorney did to


      10
       Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017) (quoting
McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)).
      11
           Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012).
      12
           Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

                                          5
investigate the facts and law that were relevant to Bridwell’s case. Without an

explanation from Bridwell’s trial attorney about what he did to investigate

Bridwell’s case, the record fails to show that Bridwell’s trial attorney conducted an

unreasonable investigation or made recommendations to Bridwell that fell below the

standard of objectively reasonable assistance. 13 Moreover, were we to assume that

Bridwell’s trial attorney performed deficiently, the record that is before us in the

appeal fails to show that Bridwell would have likely pleaded not guilty and chosen

to go to trial given all the circumstances, as they are shown by the record before us

in the appeal.

      We conclude that Bridwell has failed to overcome the strong presumption that

he received reasonable professional assistance.14 We overrule Bridwell’s ineffective




      13
          See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005);
Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). We also observe
that the record shows the trial court told Bridwell about the punishment range that
the court would consider in assessing his sentence during the hearing on his plea.

      14
         See Thompson, 9 S.W.3d at 813-14 (“In the majority of instances, the record
on direct appeal is simply undeveloped and cannot adequately reflect the failings of
trial counsel.”); see also Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App.
2000) (stating that only in rare cases will the record on direct appeal be sufficient to
establish a claim that counsel’s performance was deficient).

                                           6
assistance claim, without prejudice to his right to raise his claim in a post-conviction

writ.15 For these reasons, we affirm the trial court’s judgment.

      AFFIRMED.


                                                      _________________________
                                                           HOLLIS HORTON
                                                                Justice


Submitted on August 13, 2018
Opinion Delivered November 7, 2018
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




      15
           See Goodspeed, 187 S.W.3d at 392; Robinson, 16 S.W.3d at 813 n.7.
                                           7
