### TEXA S COU RT O F AP PEAL S, THIRD DISTRICT , AT AUST IN

NO. 03-00-00402-CR

Rodney Roa ch, Appellant

v. The State of Texas, Appellee

FROM THE

DISTRICT CO URT OF BURN ET COUNT

Y, 33RD JUDICIAL DIST RICT NO. 8934, HONORAB

LE FRANK M

ALONEY, JUDGE PRESIDING
App ellant Rodney R

oach wa s indict

ed for the felony o ffense of driving w hil e intoxicated. See Tex. Penal Code Ann. §§ 49. 04(a),
. 09( b) (West Supp. 2001). Appellant pleaded guilty and

el ec te d t o h av e a

ju ry a ss es s h

is pu ni sh ment
. Th e j ury

sentenced him to five years’ confinement in the Institutional Division of the Texas Depar tment of Cr iminal Justice. On appeal, appella

nt allege s that he

was de nied effective as sista

nce of cou

nsel at trial. We affirm t he trial court’s judgmen

t.
FACTUAL AND P

ROCEDURAL BACKGROUND Appellant was arrested on or about September 23, 1999 and charged with dri ving while intoxicated (“ DWI” ). The indictment further alleged that in 1996, appellant was convicted for t hree DWI offenses

in the prior year. These prior convicti ons enh anced a ppellant ’ s DW I2

charge to a third-degr ee felony. See id. § 49. 09(b). Appellan t pleade d guilty to the DWI charge and tr ue to the all egations of pri or co nviction s. The cas e proceeded

to a jury tr ial on the issue of punishment. At trial, the Sta te
ca ll ed th ree po li ce of fi ce rs to testify to the facts of appellant’s arr est and introduced a videotape of the arrest. The tape s

howed ap pellant d riving in an erratic fashion and failing three fiel d sobriety tests, wh ic h w ere

adminis tered at the a

rr est sc ene and

again at the B urnet County Jail
. The arr esting officer testified that appellant refused to take a B reathalyzer test or to sign a refusal sheet and a DWI inte

rview s heet
. A fourth S tate ’s witness described appellant’s criminal history, whichinclu

ded a fourth, unad

judic ated , DWI a

rr es t in 1995. Defense counsel cross-examined each of these wi tnesses.

In h is opening statement, defense counsel emphas ized that appellant would n o t contest the DWI charge, but that c ounsel wo uld pres ent c ircums tanc es e xpla ining appe llant ’s beha vi or. Counsel then el ic it ed te st im on y t ha t s ho rtl y b ef ore appe llant ’s 19 99 arrest, appellan t’s 61 -y ea r- old live-in companion h ad been br utally r aped and beaten
. Appellant’ s psychologist testified that appellant was unable to process stressful situations and reacted to them by drinking. She explaine d that appella nt does n ot have a substa nce abu se problem but

has low self-es teem, depression, and anxie

ty, all related to post-tr aumatic stress syndrome. The psychologist testified that appe llant was

reacting favorably to

counse ling and th at, in her opinion, probation would be an appropriate punis

hment for him. Appe llant also test ified on his own b ehal f. He admitted that he had been driving while intoxicated onthe night of his arr est, but asked the jury to consider his companion’s attack3

as a mitigating circumstance. He stated that, after “ several days of intense stress [and] emotion, ” he had gone to a bar to r elax by singing karaoke. He said that he drank two scotches-on-therock s, whichintoxica

ted him quickly because he had not had alcohol s ince his last DWI conviction in 1996. Appellan

t also te stified th at his fou r prior DWI arrests were cluste red in a two-month period, during which time he was experiencing stress from a r ecent divorce and the shut-down of the plant where he worked.

Other witnessesfor the de fe ns e i nc lu de d a pp el la nt ’s co mp an

io n a nd hi s e mp lo yer. His companion testified that appellant supports her financi ally and e motionally. His employer testified that appellant is a model employee.

Inhis closing argument, appellant’s counsel asked the jury to have mercy on his client. He described appellant as a productive member of socie ty who drank whe

n under extreme stress but who was undergoing treatment for his pr oblems. Counsel also emphasized that appellant
was fifty-nine yea

rs old at the time

of trial. Counsel called the ten years of penitentiary time that the State requested a “ life sentence” and asked the jury to assess punis hment of probation only. The jury sentenced appellant to five years in the penitentiar y.

Appellant now contends that

he rec ei ve d in eff

ec tiv e a ss is ta

nc e o f co uns el
. He alleges first that counsel’s tri al tactics were deficient. Appellant claims that the deficient tactics
cau sed him to improperly plead gu ilty. Appellan

t also urges

that coun sel did n

ot adequa tely develop his mitigation defense and thus failed to persuade the jury to r ecommend probation. Second, appella

nt allege s that tr ial counsel did not prepare adequately for trial, thereby under mining t he pr oper functio ning of t he adver sarial pro cess.4 DISCUSSI ON We asse ss cla

ims of ineffective assistance of counsel us ing the standard setby the Sup reme Court in Strickland v. Washington, 466 U. S. 668 (1984), and adopted by the Texa s Court of Cr iminal App eals in Hernan dez v. State , 726 S. W. 2d 53, 57 (Tex. Crim. App. 1986)
. See also Hern andez v. State , 988 S. W. 2d 770, 770 (Tex. Cri m. App. 1999) (adopting the Strickland test

for claim s of ineff

ective ass istance of counsel during noncapital sentencing procee dings ). Strickland setsforth a two-pr onged

test requiring a de fendant to show bot h that his
coun sel’ s perfor mance was deficient and that t his perfor mance prejudiced the defense. Strickland, 466 U. S
. at

68 7. An a

pp el la nt be ars th e burden

of show in g b ot

h d ef ic ient perfo rm ance an d prejudice by a preponde ra nce of the evidence. Thompso n v. State , 9 S. W. 3d 808, 813 (Tex. Crim. Ap

p. 199 9)
. Th is

bu rde n re quire s t

he de fe nd an

t t o b ring f

orw ard a re c ord that affirmatively

demonstrates trial counsel was ineffective. Id .; McF arland v

. State , 928 S. W. 2d 482, 500 (Tex. Cri m. App. 1996). If the recor d available on a direct appeal is not s ufficiently developed, it will not provide “ a fair evaluation of the mer its of the claim involving such a serious allegation. ” Thompson , 9 S
. W. 3d a t 813. F ailure to affir matively show either deficient perfor mance or sufficient pr ejudice def eats a clai m of inef

fectiveness. Id .; McF

arland , 928 S. W. 2d at 500.

Under the fir st Strickland prong, a defendant must show that counsel’s assis

tance
was deficient, falling below an objective standar d of r easonableness. Thompson , 9 S. W. 3d at 812. Our review

of cou nse l’s performance is high ly deferential. Strickland, 466 U. S. at 689. Thus,
we begin by presumin g that trial coun sel’s p erformance was wi thin the range o f reasonable5

professional assistance. Id .; Thompson , 9 S. W. 3d at 813. The adequacy of counsel’s ass istance is based upon the totality of the repr esentation rather than on isolate d instan ces of e rr or or on only
a portion of the trial. Garcia v. State , 887 S. W. 2d 862, 880 (Tex. Crim. App. 1994)
. We evaluat e counsel’s perform ance at trial “ from counsel’s per spective at th e t im e” an d m ak

e “ev ery ef fo rt
. . . to elimina

te the dis torting effects

of hindsig

ht. ” Stafford v. State , 813 S. W. 2d 503, 506 (Te x. Crim. App. 1991)
.

A defendan

t who meet s the burden of showing deficient assistance of coun sel must thenshow that the deficiency prejudiced his defense. Strickland, 466 U. S. at 687. In other word s, the defendant

must show a reasona

ble proba bi li ty th at , ba rring c ou ns el ’s errors , th e j ury would have reached adifferent sentencing decision. Id. at 694; McF arland , 928 S. W. 2d at 500. As defined b y t he Supreme Court, “ [a] reasonabl e probability is a probability s

ufficient to undermine confidence in the outcome. ” Strickland, 466 U. S. at 694.

Inarguing that trial counsel’s tactical decisions were deficient, appellant observes that counsel did not elicit testimony that appellant had no prior felony co nviction s. Appellant argues that he might not have elected to plead g

uilty if this testimony had been presented to the jury. Alternatively, appellant argues that this testimony would have increased the likelihood of his receiving probation.

A defendant cannot

knowingly

and volun

tarily enter into a guilty plea if that plea is made as

a result of ineffe ctive as sista nce of cou

nsel. Ex p arte Burns , 601 S. W. 2d 370, 372 ( Tex. Cri m. App. 1980). F or example, a guilty plea is not proper i f counsel fails to adv ise a defend ant

on how the facts of his case relate to Texas law or if counsel advises a defendan t t o6

plead guilty in order to avoid a nonexistent penalty. Id
. Neither of these situations apply to the
case at ba r. Contr ary to appellant’s assertion, to receive a jury r ecommendation of probation, trial counsel need not question a defendant before the jur y as to whether the defendant had ever been convicted of a felony. See Tex. Code Crim. Proc. art. 42. 12, § 4(e) (Wes t Supp. 2001). In this case, the parties stipulated on the recor d that appellant had n o p rio r fe lo ny

co nv ic ti on s. The

ju ry
was properly charged and all owed to consider probation as a punishment. It is unlikely that additional testimony about appellant’s criminal r ecord would have sign ifica ntly affect ed th e jury’s decision. F urther more, the recor d shows that the court discussed the guilty plea with appellant prior to trial and en

um era te d a ll th e p os si bl e punis hm en

ts th e j ury could assess
. The recor d, when viewed a s a whol e, indicate s that a ppellant entered his g

uilty plea knowingly

and voluntarily; it does not indicate that the senten cing outco me would have been any different had there been testimony ab out appell ant’s lack of felonies. See Gar

cia , 887 S. W. 2d at 880. Appellant lists several other supposed deficiencies in trial co uns el ’s st rate gy. He
asse rts that trial couns el (1) “ did not argue that there wer e no bottles or other container s of alcohol inthe vehicle, ” (2) asked only one question when he cross-examined the State’s second witness, and (3) did no t explore other evidence that may have “ shed additional light on the defense of [appellan t’s] being distraught. ” Appellant fails to specifically a ssert, however , why these strategies demonstrate ineffective assistance of counsel or howthey prejudiced his defense. The
recor d is silent as to why counsel chose these strategies. While, in hindsight, counsel’s attempt to mitigate

punishme

nt did not provide the result desired by appellant, we must presume that at the time it was a viable trial strategy. See Thompson , 9 S. W. 3d at 814; McF

arland , 928 S. W. 2d7

at 501; Stafford , 813 S. W. 2d at 506. Accordingly, we cannot conclude that appellant has s hown eithe r that trial

coun sel’ s trial tactics were deficient or that these t actics prejudiced the

outcome of this case. See Thompson , 9 S. W. 3d at 813; McF arland , 928 S. W. 2d at 500. Appellant next contends that counsel was unprepared, did

not investi gate the case prior to tri al , an d t

heref ore did not have “ a firm command of the f acts of the case. ” Appellant suggests that if counsel

had been better prepar ed, counse l might not ha ve permitted his

client to enter a guilty plea. Appellant proffer s two examples of this lack of preparation. F irst, appellant claims that counsel did not interview the State’s police officer witness es in preparation for trial. To bolster this claim, appe llant q uotes counsel as be ginning cross-examination of one of the of fi ce rs by saying, “ I do not know if we’ve met or not. ” Second, appellant asserts that counsel did not prepar e bywatching the arr est scene videotape prior to trial. Appellant notes that when the State showed the

jury a por tion of the tape, trial counsel objected under the r ule of optional completeness and r equest ed that the tape be shown in its entirety. When making his objection counsel st at ed , “ We

ha ve no id ea wh at ’s on

th ere and neither does the jury. ” Appellant maintains that this statement proves counse l saw the video “ for the first time when the jury was watching it. ” Appellant a lso accuses couns el of failing to read the file, but does not present any evidence to support this accusation.

Trial counsel has the duty to reasonably investigate his client’s case. Strickland, 466 U. S. at 691; McF

arlan d , 928 S. W. 2d at 501. However, failure to investigate must be demonstrated by the recor d. McF arland , 928 S. W. 2d at 502. F urt herm ore, “ we will not rever se
a convictio n unless the consequence of the failu re to investigate ‘is that t he only viab le defense8

availab le to the accused

is no t adv ance d. ’” Id
. at 501 (quoting Ex par te Duffy , 607 S. W. 2d 507, 517 (Te x. Crim. App. 1980) ).

The two isolated

stateme nts quoted by

appella nt do not affirmative ly demonstrate that defense counse l did

not investigate his client’s case
. See id
. at 500, 502. Without a hearing inquiring into counsel’s strategies, there is no recor d to support a claim of impr oper investigation. See Thompson , 9 S. W. 3d at 813 n. 5; Jacks on v. State , 877 S. W. 2d 768, 772 (Tex. Cri m. App. 1994) (Ba ird, J. , conc

urring). F urther more, defense counsel spe cifically states in other portions of th e t ria l re co rd that he pr eviewed the ar rest tape before tr ial. Additionally, counsel requested that the video

be show n in full so t

hat the ju ry could hear a portio n w here appellant asked the
arr esting officer if he was familiar with the case of a lady in Llano who was raped, beaten, and left for dead on the side of the r oad. On cro ss-examination by defense couns el, the arr esting officer stated that appellant said he had just picked that lady up at the hos pital and dropped her off at home. This exchange shows that trial counselwas familiar with the facts of the case and that he use d those fa

cts in anattempt to

mitigate p

unishme nt. Appellan

t fails to s how a reason

able probability

that, had counselperfor med further investigation, the outcome of the trial would have been different. See McF

arland , 928 S. W
. 2d at 502. We conc lude that appella nt has fa iled to show ei ther deficienc

y or prejudice in the i ssue of counse l’s preparation for trial.9 CONCLU SION The judgment of the tri al court is affir med.

Jan P. Patter son, Justice B efore Chief

Justice Abouss ie, Justices Yeake l and Patter son Affirm ed F iled: April 19, 2001 Do N ot Pu blish