                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________
                               NO. 09-12-00267-CR
                             ____________________

                 DAVID CLIFFORD PEDDER JR., Appellant

                                         V.

                          THE STATE OF TEXAS, Appellee
_______________________________________________________            _____________ _

                    On Appeal from the 128th District Court
                            Orange County, Texas
                         Trial Cause No. A-100640-R
________________________________________________________             ____________ _

                            MEMORANDUM OPINION

      Claiming that his attorney rendered ineffective assistance of counsel, David

Clifford Pedder Jr. appeals his conviction for aggravated sexual assault of a child.

See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (West Supp. 2012).1 We affirm the

trial court’s judgment.




      1
        We cite to the current version of the statute, as the amendments do not
affect the issue set forth in this appeal.
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      Pedder was accused of having sex with a twelve-year-old girl, M.S., 2 at his

place of employment, an automotive-repair garage. Pedder knew M.S. before the

alleged assault and assisted in getting her a job that involved working on Saturdays

at the garage. The testimony at the trial reflects that Pedder customarily picked

M.S. up before work began each Saturday and then, after work, took her to her

home in a nearby town. According to M.S., after arriving at the garage one

Saturday morning before the garage opened for business and before others arrived,

Pedder had sex with her.

      Pedder testified at the trial that he never had sex with M.S. According to

Pedder, his adult stepson had engaged in sex with M.S., and Pedder had been

paying M.S. money to keep her quiet. In presenting his case, Pedder also called the

person who owned the garage as a witness. The owner testified that the assault

could not have occurred as M.S. described because when the assault allegedly

occurred, Pedder did not have keys to enter the garage. The owner also testified

that he always arrived at the garage well before it opened, and he never found

Pedder or M.S. in the garage before he opened the garage for business.

      2
        To protect the privacy of the child who the jury convicted Pedder of
assaulting, we identify the child by using the initials of the pseudonym assigned to
the child in the indictment, as the Texas Constitution grants crime victims “the
right to be treated with fairness and with respect for the victim’s dignity and
privacy throughout the criminal justice process[.]” Tex. Const. art. I, § 30(a)(1).
                                         2
      In a single issue, Pedder claims that his trial counsel rendered ineffective

assistance. According to Pedder, his trial counsel failed to adequately prepare for

trial by reviewing the State’s file and also failed to interview and present

potentially exculpatory witnesses at trial. On appeal, Pedder expands his

ineffectiveness claim, asserting that his trial counsel failed to file pretrial discovery

and to photograph the crime scene. According to Pedder, such photographs “would

have aided the jury in a not guilty verdict.” But, appellate counsel offers no further

explanation regarding how the photographs or the filing of written discovery

motions would have secured relevant evidence. Appellate counsel further fails to

explain why the lack of photographs of the scene or the failure to file written

discovery motions caused the jury to render an improper verdict.

      After the trial court rendered judgment, Pedder’s appellate counsel filed a

motion for new trial. Subsequently, the trial court conducted a hearing, and trial

counsel testified at the hearing. Trial counsel explained that he did not have “an

independent recollection of looking” at the State’s file, but he stated that he

normally reviewed his client’s files, assumed that he had reviewed the file in

Pedder’s case, and specifically recalled that there were “several occasions” that he

had “thorough discussions with the DA concerning the evidence of the case.”

Pedder’s trial counsel also testified that he had been to the garage. Trial counsel

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was never asked during the hearing whether he had taken any photographs or why

he chose not to take photographs of the scene. Additionally, trial counsel denied

that he told Pedder that he was not prepared for trial. During the hearing, trial

counsel was not asked anything about why he chose not to file motions seeking

pretrial discovery, nor was he questioned about his strategy in not calling

additional witnesses.

      The prosecutor also testified at the hearing on Pedder’s motion for new trial.

According to the prosecutor, while there is usually a note reflecting that someone

reviewed the district attorney’s file, that is not always the case. After reviewing the

file at the hearing, the prosecutor testified that he gave Pedder’s trial counsel any

required information, along with several disks. The prosecutor expressed doubt

that the disks would have been provided had Pedder’s trial counsel not reviewed

Pedder’s file.

      Pedder presented six witnesses during the hearing, who explained that

Pedder did not have keys to access the garage when the alleged assault occurred.

One of these, the owner of the garage, had testified during Pedder’s trial. Pedder’s

trial counsel acknowledged the importance of showing that Pedder did not have

keys to access the garage, of proving that the assault could not have happened as

M.S. alleged, and of demonstrating that the owner was the person who always let

                                          4
Pedder and M.S. into the garage after he opened it. Trial counsel testified that he

spoke with some of the witnesses who testified at the hearing on the motion for

new trial; he also testified that with respect to others, he either could not recall

speaking with them or did not know who they were. He was not asked to explain

why he chose to call only the owner of the garage in an effort to establish that

Pedder did not have keys to the garage.

      We apply a two-pronged test to resolve ineffective assistance of counsel

claims. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Garza v. State,

213 S.W.3d 338, 347-48 (Tex. Crim. App. 2007); Thompson v. State, 9 S.W.3d

808, 812 (Tex. Crim. App. 1999). To establish the ineffective assistance of

counsel, the appellant must show by a preponderance of the evidence that his

counsel’s representation fell below the standard of prevailing professional norms

and that there is a reasonable probability that, but for counsel’s deficiency, the

result of the trial would have been different. Strickland, 466 U.S. at 687, 694;

Garza, 213 S.W.3d at 347-48; Thompson, 9 S.W.3d at 812. But, as Garza

explained, our review of ineffective assistance claims is “highly deferential” to

trial counsel, as we presume “that counsel’s actions fell within the wide range of

reasonable and professional assistance.” Garza, 213 S.W.3d at 348. In reviewing

complaints about trial counsel’s alleged deficiencies, an appellate court must

                                          5
“avoid the deleterious effects of hindsight.” Thompson, 9 S.W.3d at 813. Trial

counsel’s decisions are viewed with great deference when trial counsel’s reasons

for not undertaking a suggested strategy do not appear in the record. Goodspeed v.

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

      Although Pedder’s trial counsel testified during the hearing, he was never

asked to explain why he chose not to call any specific witnesses during Pedder’s

trial. Trial counsel was not asked to explain why he did not photograph the garage

where the assault occurred. Therefore, no explanation regarding trial counsel’s

strategy on these matters appears of record. With respect to reviewing the State’s

file, trial counsel did not admit that he failed to review it, and the evidence before

the trial court was sufficient to allow the trial court to reject Pedder’s claim that the

file had not been reviewed by trial counsel before Pedder’s trial.

      “A Strickland claim must be ‘firmly founded in the record’ and ‘the record

must affirmatively demonstrate’ the meritorious nature of the claim.” Id. (quoting

Thompson, 9 S.W.3d at 813, 814 (declining to speculate on counsel’s failure to

object to hearsay in light of a silent record)). Generally, when faced with a record

that does not include an explanation of trial counsel’s strategy, the record before

the appellate court is deemed to be insufficient to demonstrate that trial counsel’s

conduct was ineffective, unless the challenged conduct was “‘so outrageous that no

                                           6
competent attorney would have engaged in it.’” Id. (quoting Garcia v. State, 57

S.W.3d 436, 440 (Tex. Crim. App. 2001)). On a record that does not disclose

counsel’s strategy, which is the situation presented by this record, we will not

second-guess counsel’s strategy when the record does not demonstrate that no

competent attorney would have handled the trial in the manner it was handled. See

id. (evaluating whether challenged conduct was “‘so outrageous that no competent

attorney would have engaged in it’”); see also Ex parte Chandler, 182 S.W.3d 350,

356 (Tex. Crim. App. 2005) (“[A] reasonably competent counsel need not perform

a useless or futile act[.]”). Because Pedder’s arguments claiming that he received

ineffective assistance of counsel are not firmly founded in the record, we overrule

his sole issue. We affirm the trial court’s judgment.

      AFFIRMED.



                                               ________________________________
                                                        HOLLIS HORTON
                                                             Justice

Submitted on September 19, 2013
Opinion Delivered October 16, 2013
Do Not Publish

Before Gaultney, Kreger, and Horton, JJ.




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