                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-17-00611-CR

                                     Douglas Wayne HEFNER,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                    From the 198th Judicial District Court, Bandera County, Texas
                                  Trial Court No. CR-XX-XXXXXXX
                            Honorable M. Rex Emerson, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: July 25, 2018

AFFIRMED

           Douglas Wayne Hefner appeals his conviction for the offense of possession with intent to

deliver a controlled substance (methamphetamine) weighing more than 4 grams and less than 200

grams, asserting trial counsel was ineffective for failing to request that the trial court reopen

evidence at the punishment phase to present Hefner’s testimony that he was eligible for probation.

We affirm the trial court’s judgment.
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                                            BACKGROUND

        Hefner was indicted for possession of a controlled substance (methamphetamine) with

intent to deliver. He pled not guilty and proceeded to a jury trial. Hefner was present for the first

day of trial, but failed to appear on the morning of the second day of trial. Over defense counsel’s

objection, the trial court proceeded without Hefner. At the conclusion of the guilt-innocence

portion of trial, the jury returned a guilty verdict.

        Prior to trial, Hefner filed an election pursuant to which he requested that the jury assess

punishment if found guilty, as well as a sworn application for probation. Due to Hefner’s absence,

defense counsel did not present punishment evidence, including evidence regarding Hefner’s

eligibility for probation. The parties rested and closed as to punishment, and defense counsel

remarked in a bench conference that he was prohibited from asking the jury for probation since

Hefner was not present. A few minutes later, the record reflects that Hefner appeared in court.

The jury charge had not yet been prepared or read to the jury. The trial court ultimately approved

of a jury charge that only permitted the jury to consider prison time as a possible punishment. The

trial court sentenced Hefner to fifteen years’ imprisonment in accordance with the jury’s

punishment verdict.

                                        STANDARD OF REVIEW

        To prevail on a claim of ineffective assistance of counsel, the defendant must show that

counsel’s performance was deficient and that the deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Prine v. State, 537 S.W.3d 113, 116 (Tex.

Crim. App. 2017). “The benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686. The defendant

bears the burden of proving by a preponderance of the evidence that counsel was ineffective.
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Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Whether a defendant received

effective assistance of counsel is based on the facts of each case. Id.

       Counsel’s performance is deficient if it falls below an objective standard of reasonableness.

Strickland, 466 U.S. at 688. “It is not sufficient that the appellant show, with the benefit of

hindsight, that his counsel’s actions or omissions during trial were merely of questionable

competence.     Rather, the record must affirmatively demonstrate trial counsel’s alleged

ineffectiveness.” Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). The defendant

must overcome “the strong presumption that counsel’s conduct fell within the wide range of

reasonable professional assistance” and that the conduct constituted sound trial strategy.

Thompson, 9 S.W.3d at 813.

       To defeat this presumption, “[a]ny allegation of ineffectiveness must be firmly founded in

the record and the record must affirmatively demonstrate the alleged ineffectiveness.” McFarland

v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Trial counsel should generally be given

an opportunity to explain his actions before being found ineffective. Rylander v. State, 101 S.W.3d

107, 111 (Tex. Crim. App. 2003). The record on direct appeal is generally insufficient to show

that counsel’s performance was deficient. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.

2002). In the face of an undeveloped record, counsel should be found ineffective only if his

conduct was “so outrageous that no competent attorney would have engaged in it.” Goodspeed v.

State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

                                            DISCUSSION

       Hefner argues that counsel should have requested that the evidence be reopened at the

punishment phase so that he could have shown his eligibility for probation. To be eligible for

probation, both a defendant’s sworn application for probation and the evidence must show that he



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has never been convicted of a felony. Green v. State, 658 S.W.2d 303, 308 (Tex. Crim. App.

1983).

         Hefner did not file a motion for new trial complaining of counsel’s alleged deficiency, and

as such, there was no corresponding hearing at which counsel’s strategy or lack of strategy could

be developed. The record is thus silent regarding the reason counsel did not ask to reopen the

evidence. Without a developed record on appeal, we must presume a sound trial strategy unless

counsel’s conduct was “so outrageous that no competent attorney would have engaged in it.”

Goodspeed, 187 S.W.3d at 392. Because there may have been strategic reasons behind counsel’s

actions, we cannot conclude his conduct was so outrageous that no competent attorney would have

engaged in it. See id. Thus, Hefner has failed to prove by a preponderance of the evidence that

counsel’s performance was deficient under the first Strickland prong. Strickland, 466 U.S. at 687.

Accordingly, we overrule Hefner’s sole issue on appeal and affirm the judgment of the trial court.

                                                  Rebeca C. Martinez, Justice

DO NOT PUBLISH




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