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JUDGMENT

ANTHONY DEAN SNARE, Appellant

No. 05-95-01268-CR

THE STATE OF TEXAS, Appellee

Appeal from the Criminal District Court

No. 2 of Dallas County, Texas. (Tr.Ct.No.

F94-60039-TI).

Opinion delivered by Justice Chapman,

Justices Morris and Hankinson

participating.

Based on the Court's opinion of this date, the judgment of the trial court is

AFFIRMED.

Judgment entered February 28, 1997.

RON CHAPMAN

JUSTICE
AFFIRM and Opinion Filed February 28, 1997

In The

(Uimrt of Appeals

iTtftlr Itsirtrt of Gkxas at lallas

No. 05-95-01268-CR

ANTHONY DEAN SNARE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 2

Dallas County, Texas

Trial Court Cause No. F94-60039-TI

OPINION

Before Justices Chapman, Morris, and Hankinson

Opinion By Justice Chapman

Appellant appeals his jury conviction for aggravated robbery. The jury assessed

punishment, enhanced by two prior felony convictions, at fifty years' confinement. In his

sole point of error, appellant contends he received ineffective assistance of counsel. We

affirm.

Appellant contends his trial counsel was ineffective and that counsel's ineffectiveness
V

caused the jury to assess a greater sentence. Appellant complains of errors duringvoir dire

and errors during punishment.

The proper standard of review to measure counsel's ineffectiveness during voir dire

is that set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Chambers v. State, 903

S.W.2d 21, 36 (Tex. Crim. App. 1995). Under this standard, an appellant must first

establish that his counsel's representation fell below an objective standard of reasonableness.

Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994);Hernandez, 726 S.W.2d 53,

55 (Tex. Crim. App. 1986). The appellant must then show a reasonable probability exists

that, but for counsel's errors, the result of the proceeding would have been different.

Jackson, 877 S.W.2d at 771; Hernandez, 726 S.W.2d at 55.

The proper standard to review counsel's performance during punishment, however,

is the standard set forth in Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980). See Ex

parte Walker, 794 S.W.2d 36, 37 (Tex. Crim. App. 1990). We determine whether counsel

was reasonably likely to render effective assistance and whether counsel actually rendered

reasonably effective assistance. Craig v. State, 825 S.W.2d 128, 130 (Tex. Crim. App. 1992).

Several considerations are applicable to both standards. Under either standard, we

view the totality of counsel's representation and do not judge counsel's performance in

hindsight. Exparte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991);Davis v. State, 831

S.W.2d 839, 843 (Tex. App.--Dallas 1992, pet. ref'd); Ybarra v. State, 890 S.W.2d 98, 111

(Tex. App.--San Antonio 1994, pet. ref'd). Both standards require the appellant to prove
ineffective assistance of counsel by a preponderance of the evidence. Moore v. State, 694

S.W.2d 528, 531 (Tex. Crim. App. 1985). Further, the record must support a claim of

ineffective assistance. See Johnson v. State, 691 S.W.2d 619, 627 (Tex. Crim. App. 1984),

cert, denied, 474 U.S. 865 (1985). Finally, we are not permitted to inquire into trial strategy

unless no possible basis exists in strategy or tactics for trial counsel's actions. Johnson v.

State, 614 S.W.2d 148, 152 (Tex. Crim. App. [Panel Op.] 1981); Weeks v. State, 894 S.W.2d

390, 391 (Tex. App.-Dallas 1994, no pet.).

Appellant pleaded not guilty to aggravated robbery. After hearing evidence on guiltinnocence, the juryfound appellant guilty of the offense. Appellant testified at punishment

and admitted he committed the offense. The jury assessed punishment at fifty years'

confinement.

Appellant contends counsel was ineffective during voir dire because counsel

questioned the venire on issues concerning guilt-innocence. Specifically, counsel asked

questions concerning the credibility of police officers and the burden of proof. According

to appellant, these questions would alienate the jury because he was "obviously guilty" and

would admit he was guilty in the punishment phase. Appellant asks that we judge counsel's

performance in hindsight, which we are not permitted to do. See Felton, 815 S.W.2d at 735.

Further, appellant chose to plead not guilty and have the jury determine guilt-innocence.

We cannot, therefore, conclude counsel wasineffective for questioning the venire on issues

concerning guilt-innocence.

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Appellant next complains that his trial attorney did not question the venire on

punishment issues. The trial court did, however, question thevenire concerning theirability

to consider the fullrange of punishment. Thereafter, the trial court granted five of counsel's

strikes for cause against venirepersons who could not consider the minimum punishment.

Appellant nevertheless maintains counsel should have argued issues which the venire might

consider in mitigation of punishment. The record, however, is silent with respect to

counsel's reasons for not questioning the venire on mitigation issues. See Jackson v. State,

877 S.W.2d at 771. We cannot conclude there is no plausible basis for counsel's actions.1

See Weeks, 894 S.W.2d at 392.

Appellant also asserts that reasonably effectivecounselwould have pleaded him guilty

before the jury. However, the decision to plead guilty or not guilty is the personal decision

of the accused. Jackson v. State, 766 S.W.2d 504, 508 (Tex. Crim. App. 1985); Ramer v.

State, 714 S.W.2d 44, 46 (Tex. App.-Dallas, pet. ref'd). Appellant has neither asserted,

nor shown, that counsel advised him to plead not guilty.

Finally, appellant contends counsel was ineffective for failing to investigate the facts

and failing to interview witnesses. He asserts counsel failed to discover appellant had a drug

problem and a difficult childhood. The record is silent with respect to counsel's preparation

for trial. The record likewise does not show counsel was not aware that appellant used

Counsel may, for example, have decided not to question the venire on mitigation issues to avoid any suggestion that counsel

believed his client was guilty.

-4-
^°f^iS»i^:'^>#:«*^:-*i'S'

drugs and had a difficult childhood. Evidence was, in fact, presented at punishment showing

that appellant's fatherwas "tyrannical" and that appellant used drugs. Although counsel did

notfocus on this evidence, counsel's punishment argument shows itwas herstrategy to stress

that appellant had admitted his guilt and did not make excuses for his actions. We conclude

appellant has not met his burden to show counsel was ineffective. See Runnels v. State, 860

S.W.2d 545, 547 (Tex. App.-Beaumont 1993, pet. ref'd). Accordingly, we overrule

appellant's sole point of error and affirm the trial court's judgment.

Do Not Publish

Tex. R. App. P. 90

951268F.U05

-5-

RON CHAPMAN

JUSTICE
Chief Justice

Linda Thomas

Justices

Sue Lagarde

Ed Kinkeade

John Ovard

Frances Maloney

Ron Chapman

Joseph B. Morris

Mark Whittington

Tom James

Carolyn Wright

Deborah G. Hankinson

Jim Moseley

David Bridges

(£aurt of Appeals

Wxftlj Itstrtrt of Okxas at Satlas

George L. Allen Sr. Courts Building

600 Commerce Street

Dallas, Texas 75202-4658

(214) 712-3400

David Pagan

business administrator

(214) 712-3434

Lisa Rombok

clerk of the court

(214) 712-3450

Facsimile

(214) 745-1083

May 22,1997

R. D. Rucker

Attorney at Law

P.O. Box 222167

Dallas, TX 75222-2167

April E. Smith

Assistant District Attorney

Frank Crowley Courts Building

133 North Industrial Blvd., LB-19

Dallas, TX 75207

RE: Court of Appeals Number: 05-95-01268-CR

Trial Court Case Number: F94-60039-TI

Style: Snare, Anthony Dean

v.

The State of Texas

Dear Counsel:

Pursuant to Rule 86 of the Texas Rules of Appellate Procedure, this Court has this day issued a

Mandate in accordance with the Judgment and delivered it to the Clerk of the Trial Court.

Respectfully Yours,

Lisa Rombok

Clerk of the Court

Stephanie Hughes