                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-16-00271-CR


GEORGE W. BROWN, JR.                                                  APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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            FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
                       TRIAL COURT NO. CR16-0134

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                           MEMORANDUM OPINION1

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      In a single point in this direct appeal, Appellant George W. Brown, Jr.—

who entered an open plea and opted to have a jury assess his punishment—

complains that his trial counsel was ineffective for not objecting to impeachment

evidence used against one of his character witnesses. Because the record does

not affirmatively show deficient performance on trial counsel’s part, we affirm.


      1
          See Tex. R. App. P. 47.4.
        As of the January 2016 car chase that resulted in this case, Brown had

racked up six earlier felony convictions in the preceding nine years. A regular

methamphetamine user since 2005, Brown agreed that he’s “been locked up a

lot.”   He conceded at his punishment trial that he’d been given seven

opportunities for probation in the past, only to see each of them revoked.

        When he decided to flee from State Trooper Carson Bening shortly after

midnight on January 24 rather than be stopped for speeding, Brown had several

warrants out, including one for jumping bail on an evading-arrest charge in Kerr

County.       By the time the nearly half-hour car chase came to an end in

Springtown, Brown had reached speeds up to 100 miles an hour on the dark

roads around the border of Wise and Parker Counties.            In addition to air

support’s having been called in, nearly ten other law-enforcement personnel had

joined in and were on hand for Brown’s eventual surrender. One of Brown’s few

remarks at the scene was to compliment Trooper Bening on some “good driving.”

        A Parker County grand jury indicted Brown under penal code section

38.04 for evading arrest or detention with a vehicle, enhanced by a prior felony

conviction.     See Tex. Penal Code Ann. §§ 12.42(a) (West Supp. 2016),

38.04(b)(2)(A) (West 2016); see also Adetomiwa v. State, 421 S.W.3d 922,

927 (Tex. App.—Fort Worth 2014, no pet.).        He later entered a written and

voluntary confession to that charge and to the enhancement paragraph,

acknowledging a possible range of punishment between two and twenty years’




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imprisonment and a fine of up to $10,000. Tex. Penal Code Ann. § 12.33 (West

2011).

      Before a jury, Brown testified on his own behalf and also put on five

character witnesses. Each conceded Brown’s troubled past but opined that, in

their views, he had now changed.

      Defense witness Sharla Dyer was grandmother to Brown’s young son, who

was only four or five months old when Brown committed his latest offense. Dyer

had had her own troubles with the law, a description of one of which—an arrest

for “20 cents worth of cocaine”2—was elicited on direct examination.

      The State’s cross-examination reminded Dyer not only that she had a

felony conviction for drugs, but that she also had two theft convictions in her past.

This is the entirety of the exchange on which Brown bases his appeal:

            Q. Okay. And you’ve got a couple of theft convictions as well,
      correct?

               A. No, sir. You need to look again.

            Q. Oh, I will. How about in Cause No. 43638 in Wise County,
      did you get convicted up there of a theft case?

            A. Oh, it was a check. Over a check, yes. Many years ago.
      That’s like 22, 23 years ago.

           Q. And actually, two of those, correct? One there and then
      one here in Parker County?

               A. Yes.



      2
          Dyer agreed that her reference to “cents” was drug slang for “dollars.”


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      It was his trial counsel’s failure to object to these three questions that

Brown contends tainted the entire proceeding.

      At the conclusion of Brown’s trial on punishment, the jury rendered a

verdict of 16 years’ imprisonment (which was within the two-to-twenty range he

faced) and a $5,000 fine (half the possible maximum). Brown timely appealed.

      To establish ineffective assistance of counsel, an appellant must show by

a preponderance of the evidence (1) that his counsel’s representation was

deficient and (2) that the deficiency prejudiced the defense.       Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State,

415 S.W.3d 289, 307 (Tex. Crim. App. 2013); Hernandez v. State, 988 S.W.2d

770, 770 (Tex. Crim. App. 1999). An ineffective-assistance claim must be “firmly

founded in the record,” and “the record must affirmatively demonstrate” the

claim’s merit. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

      Direct appeal is usually an inadequate vehicle for raising an ineffective-

assistance-of-counsel claim because the record is generally undeveloped.

Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012); Thompson,

9 S.W.3d at 813–14. In evaluating counsel’s effectiveness under the threshold

deficient-performance prong, we look to the totality of the representation and the

particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue

boils down to whether counsel’s assistance was reasonable under all the

circumstances and under prevailing professional norms at the time counsel

allegedly erred. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava,


                                        4
415 S.W.3d at 307.      Appellate review of counsel’s representation is highly

deferential, and reviewing courts “indulge in a strong presumption that counsel’s

conduct was not deficient.” Nava, 415 S.W.3d at 307–08 (emphasis in original).

      An appellate court cannot infer ineffective assistance based on unclear

portions of the record or when counsel’s reasons for failing to do something do

not appear in the record.      Menefield, 363 S.W.3d at 593; Mata v. State,

226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel “should ordinarily be

afforded an opportunity to explain his actions before being denounced as

ineffective.” Menefield, 363 S.W.3d at 593. If trial counsel is not given that

opportunity, we should not conclude that counsel’s performance was deficient

unless the challenged conduct was “so outrageous that no competent attorney

would have engaged in it.” Nava, 415 S.W.3d at 308.

      These principles are precisely why it is a “rare case” in which the trial

record alone will support an ineffective-assistance claim. Id.

      The record here gives no hint about why Brown’s trial counsel did not

object to the State’s cross-examination of Dyer. Because counsel’s reason could

have been good, bad, or indifferent, and because we are not to speculate about

that reason—and indeed are to presume that counsel acted appropriately—we

simply cannot find ineffective assistance under this sparse and undeveloped

record.




                                         5
      Brown has not satisfied the first Strickland prong of showing deficient

representation.   We thus need not reach the second prong, that is, whether

Brown’s defense was somehow prejudiced.

      We overrule Brown’s single point of error and affirm the judgment.




                                                 /s/ Elizabeth Kerr
                                                 ELIZABETH KERR
                                                 JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and KERR, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 27, 2017




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