1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

____________________ NO
. 09
- 17
- 00 167
- CR



### ____________________ RALPH EUGENE BRIDWELL , Appellant
V.
THE STATE OF TEXAS , Appellee

_______________________________________________________ ______________ On A ppeal from the 128th District Court Orange County, Texas Trial Cause No
. A160313
- R

________________________________________________________ _____________ MEMORANDUM OPINION After pleading guilty to an indictment charging him with intoxicat ion manslaughter , 1 Ralph Eugene Bridwell filed an appeal in which he argues that his plea was not voluntary. In one issue, Bridwell argues that he received ineffective

1 See Tex. Penal Code Ann. § 49.08(a ) (West 2011) (a person commits the offense of intoxication manslaughter if he operates a motor vehicle in a public place while intoxicated and, by reason of that intoxication, causes the death of another by accident or mistake)

.2 assistance of counsel because his trial attorney failed to reasonabl y investigate certain matters, to develop a potential defense, and to properly advise him regarding the punishment the he could receive based on the circumstances in his case. Because the record on appeal fails to overcome the strong presumption that Bridw ell received reasonable professional assistance, we affirm the trial court’s judgment. Background Late one night in October 2015 , a car Bridwell was driving struck a man on a bicycle while both the car and the bicycle were travelling in a northeasterly direction
on the should er of State Highway 12. When the investigating officer spoke with
Bridwell at the scene, Bridwell agreed to provide the officer with a sampl e of his
blood. Two other police officer s accompanied Bridwell to a hospital , where a registered nurse obtained the sample. Three days later , the officer in charge of the investigation sent the sample to the Department of Public Safety’s Crime Lab, which
found th at it contained 0 .094 grams of alcohol per 100 milliliters of blood. 2 In August 2016, a grand jury indicted Bridwell for intoxication manslaughter

. Seven months later, without the benefit of a plea bargain, Bridwell appeared in court

2 See id . § 49.01(2 ) (B) (West 2011) ( providing that a per son is intoxicated if his blood alcohol concentration is 0.08 or more).3 and ple a d ed guilty to that charge. 3 One month later, during Bridwell’s punishment hearing, Bridwell pleaded true to the two felony enhancement allegations in his
indictment. 4 After pleading true to the allegations that he had committed t w o prior
felonies , the trial court advised Bridwell his punishment range was “ a minimu m of 25 years confinement in the Texas Department of Criminal Justice

- Institutional Division and a maximum of life[.]” Bridwell then called four witnesses to testify during the punishment phase of his trial

. A fter hearing the punishment evidence , the
trial court sentenced Bridwell to a thirty

- five

- year sentence

. 5 In the brief that Bridwell filed to support his appeal, he argues that his trial
attorney (1) failed to properly investigate his case, (2) performed deficiently because he failed to develop potential defenses to the State’s theory claiming that Bridwell was guilty of intoxication manslaughter, and (3) failed to advise Bridwell that

3 See id . § 49.08(a) , (b ) (West 2011) (providing intoxication manslaughter is a second

- degree felony)

.

4 The enhancement allegations assert that in 2006, Bridwell was convicted on a charge of felony driving while intoxicated , and that in 1994 , he was convicted o f a second felony for aggravated assault.

5 See id. § 12.42(d ) (West Supp. 201 8 ) (authorizing a maximum punishment of life in prison under the circumstances established by the record in Bridwell’s case).4 pleading true to the enhancement allegations in the indictment would subject him to the range of punishment that the trial court considered when assessing his sentence

. Analysis To establish a claim of ineffective assistance, the defendant must first establish that his attorney made error s so serious that the attorney faile d to function
as “counsel” as gua ranteed by the Sixth Amendment. 6 Establishing that such serious
error occurred is difficult without a record that is sufficient to overcome the “str ong presumption that counsel’ s conduct fell within the wide range of reaso nable professional assistance.” 7 Second, the defendant must show that “the deficient perf ormance prejudiced the defense.” 8 In the con text of a guilty plea, “ the
defendant ’s burden is to demonstrate a reasonable probability that the deficient performance caused the defendant to waive a judicial proceeding that he was
otherwise entitled to have. ” 9

6 Strickland v. Washington , 466 U.S. 668, 687 (1984).

7 Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Strickland , 466 U.S. at 690).

8 Strickland , 466 U.S. at 687.

9 Miller v. State , 548 S.W.3d 497, 499 (Tex. Crim. App. 2018)

.5 To overcome the presumption that the trial attorney provided the defendant with reasonable professional assistance, the evidence showing the trial attorney was
ineffective must be “‘ firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness

. ’” 10 Ordinarily, when the defendant failed to
raise a claim of ineffective assistance in the proceedings that took place in the trial

court , the record before the appellate court will seldom have be en sufficiently developed to allow the appellate court to conclude that trial counsel made errors so
serious that they vio lated the Strickland standards. 11 If the trial attorney who represented the defendant was never given the opportunity to explain the conduct
that the defendant is challeng ing in his appeal , appellate courts generally presume
that had such an opportunity been made available , the attorney ’s explanation would
have shown that the choices made in defending the case were decisions that represented reasonable choices betw een different trial strategies

. 12

Here , the record does not show that Bridwell filed a motion for new trial

. T he
record also contains no evidence showing what Bridwell’s trial attorney did to

10 Prine v. State , 537 S.W.3d 113, 117 (Tex. Crim. App. 2017 ) (quoting McFarland v. State , 928 S.W.2d 482, 500 (Tex. Crim. App. 1996) )

.

11 Menefield v. State , 363 S.W.3d 591, 592

- 93 (Tex. Crim. App. 2012).

12 Garcia v. State , 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).6 investigate th e facts and law that were relevant to Bridwell’s case. Without an explanation from Bridwell’s trial attorney about what he did to investigate Bridwell’s case, the record fails to show that Bridwell’s trial attorney conducted an unreasonable investigation or made recommendations to Bridwell that fell below the
standard of objectively reasonable assistance. 13 Moreover, were we to assume that Bridwell’s trial attorney performed deficiently, the record that is before us in the

appe al fails to show that Bridwell would have likely plead ed not guilty and chosen

to go to trial given all the circumstances , as they are shown by the record before us
in th e appeal

. We conclude that Bridwell has failed to overcome the strong presumption that
he received reas onable professional assistance. 14 W e overrule Bridwell’s ineffective

13 See Goodspeed v. State , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Rylander v. State , 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). We also observe that the record shows the trial court told Bridwell about the punishment range that the court would consider in assessing his sentence during the hearing on his plea

.

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

- 14 (“In the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel. ” ) ; see also Robinson v. State , 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000 ) ( stating that only in rare cases wi ll the record on direct appeal be sufficient to establish a claim that counsel’s performance was deficient).7 assistance claim , without prejudice to his right to raise his claim in a post

- conviction
writ. 15 For the se reasons, we affirm the trial court’s judgment.
AFFIRMED.

_________________________ HOLLIS HORTON Justice

Submitted on August 13 , 2018 Opinion Delivered November 7, 2018 Do Not Publish Before McKeithen, C.J., Kreger and Horton , JJ.

15 See Goodspeed , 187 S.W.3d at 392; Robinson , 16 S.W.3d at 813 n.7

.