NO. 07-04-0495-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A FEBRUARY

16, 2006

______________________________ ALVIE DALE W ARD, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 4 7TH DIST RICT COURT OF RANDALL COUNTY; NO. 15,724-A; H ONORABLE HAL MINER, JU DGE

_______________________________ Before REAVIS and CAMPBELL and HANCOCK, JJ. MEMORA NDUM OPIN ION Followi ng a plea of not

guilty , appellant Alv ie Dale Ward was conv icted by a jury of forgeryand sentenced to one year confinement. Presenting three issues , appellant contends his trial counsel’s r epresentation w

as ineffective and he is entitl ed to a new tri al because counsel (1) did not speak with potential alibi witnesses bef ore trial, (2) did not call1 The clerknoted the vehicle’s license pla te number on the face of the c heck when

it was r eceived. 2 potential alibi witnesses t hat were at t he courthouse and w ere wil ling and available to test ify, and (3) did not subpoena two alibi witnesses that were willi ng and available to testi fy. We affirm. Appellant

was char

ged wit h passing an unauthorized chec k at a Pak-A-Sak convenience store in Amarillo. Upon discovering the check was a forgery, the store clerk provided police w ith a physi cal descri ption of the culprit and the l icense plate number of the vehicle he was driving. 1 Police ident ified the vehicle as belonging to appellant’sson-inlaw who live d with appe llant. When presented wi th a photo lineup, the clerk i dentified appellant

as the per

son who g av e her the check . When contacted by police, appellant denied any know ledge of the inc ident and prov ided detectives with a handwrit ing sample. The sample was inconclusiv e. Attrial, appel lant testified he could no t have passed the unauth orized check because, at t he ti me of t he o ffense, he was w orking i n Dalhart w here he had contr acted to install flooring. In sup port of his arg ument, he produced a r eceipt for two motel r

ooms in Dalhart w here he claimed he stayed al on g with his three br others. None of the men were called to tes tify at appell ant’s trial . Follow ing his conviction, appellant filed amotion for new trial claiming that, because trial counsel did n ot c all any ali bi w itne sses

to t esti fy3

to appellant’ s whereabouts, material evidence w as not presented to the jury for consideration
. Ata hea ring o n the moti on, t esti mon y revea led t hat s evera l fam ily m embe rs, including appellant’s b rothers, were present outs ide the courtr oom and were willin g to test ify, butwere tol d by counsel that th ey needed to l eave. Two additional w itnesses, the owner of the motel and his employer’s bookkeeper , testified they were never

contacted by counsel in connection with the case. Appellant’ s trial counsel also testified at the hea ring. Atthe conclusi on of the testimony, t he trial cour t denied appellant ’s motion. Appel lant subsequently filed a notice of app eal. Because appellant’s issues a re factually similar, we will consider them together. Aclaim of ineffectiven ess i s revie wed un der t he st and ard s et ou t in St rickl and v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 8 0 L.Ed.2d 674 (1984 ). Under Strickland, a defendantmust establish tha t (1) counsel 's performance w as deficient (i. e., fell below an obje ctive st andard of reasonablene ss), and (2) there is a r

easonable probabi lity that but for counsel's deficient perf ormance, the result of the proceeding would have been different, a reasonable probability bein g a probab ility sufficient to undermi ne confidence in the ou tcome. Rylander

v. State, 10 1 S.W.3d 107, 110 (Tex.Cr.App. 2003); Hernandez v . State, 726 S.W.2d 53, 55 (Tex.Cr.App. 198 6). In oth er words, a defendant must d emonstra te the deficient per formance prejudiced his defense. Mi tchell v . State, 68 S.W .3d 640, 642 (Tex.Cr.App. 20 02).4

The adequac

y of defense counsel's assistance i s based upon the totality of the representation rather than by isolated acts

or omissions of

trial couns el. Id. Although the constitutional right

to counsel ensu res the rig htto reasonably effective counsel , it does not guarantee errorless counsel whose competency or accuracy

of representation is to be judged by hindsi ght. Ex Parte Kunkle, 852 S.W.2d 499, 505 (Tex.Cr.App. 1993); Ingham v. State, 679 S.W .2d 503, 509 (Tex.Cr.App. 19 84). Appellate review of trial co unsel' s representation is highl y deferential and presumes that counsel's con duc t f ell wi thin the wide range of reason able and profession al representat ion. Bone v. State, 77 S.W.3d 828, 833 (Tex.Cr. App. 2002); Mal lett v. State, 65 S.W.3 d 59, 63 (Tex.C r.App. 2001). Also, a claim of ineffectiveness must be firmly founded in th e reco rd. Thompson v. State, 9 S.W .3d 808, 813 (Tex.Cr.App. 19 99). Here, the record indicates appel lant’s tri al counsel visited with several of appellant’s family members that were avail able to testify but, after consul ting w ith appellant, made a determination not to call t hem as witnes ses because “[ t]hey either

had c rimin al histori es

. . . or their stories conflicted in one way or another with [appellant’s].” He also testified that his associate made several unsuccessf ul attempts to contact som eone at the motel, but he ultimately

concluded that the wi tness was unnecessary and that the recei pt would be sufficient proof. The bookke eper’s testimony r evealed she ha d no personal knowledg e of appellant’s whereaboutsother than the fact that he picked up his payc heck the day after the charged offense. F urthermore, when qu estioned specifically regarding his failure to call5

certain witn esses in th is case, trial counsel testified that i t was par t of his over

all trial stra tegy. Applying the a ppro pri ate s tand ard of revie w and consi dering the s trong pres umption in favor of

reaso nable and professio nal representation, we conclude cou nsel’s performance in this case was not defic ient and did not fal l below an objective standard of reasonableness. Appellant’sissues are overrule d. Accordingl y, the tri al court’s judgment is affirmed.
Don H. Reavis Justice Do not publish
.