NO. 07-04-0563-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL A SEPTEMBER 8, 2005

______________________________ RONNIE LEE GONZALES, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 242 ND DISTRICT COURT OF HALE COUNTY; NO. B1536 9-0402; H ONORABLE ED SELF , JUDGE

_______________________________ Before REAVIS and CAMPBELL and H ANCOCK, JJ.
MEMORAND UM OPINION Appella nt, Ronnie Lee Gonza les, app eals from a convic tion, pur suant to aguilty plea, of aggravated sex ual a ssault of a child and two counts of indece ncy with a child by contactand jury sentence of 65 years confinement and a $1 0,000.00 fine. Overruling appella nt’s issu es, we af firm. Appellant

was ind i cted for aggravated sexual assault of a child and two counts of indecencywith a child , alleged to have occurred on December 10, 2003. The child in2

question was the four and one-half year old daughter of appellant’s girlfriend. Trial counsel
was hired by appellant and the caseproceeded to trial. Appellant entered a plea of guilty and a jury

was sel ected to a ssess pun ishment. Appellant

presents a single issue claiming that the failureof appellant’s counsel to strike venireperson Tirey from the jury constituted ineffective as sista nce of counsel requiring reversal. We disagree.
To prevail on a claim of ineffective assistance of counsel, appellant must meet the two pronged test of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052 , 80 L.Ed. 2d 674 (1984). See Hernandez v. State , 726 S.W.2d 53, 57 (Tex.Crim.App. 1986) (adopting Strickland as the applica ble standar d under Texa s Constitution). Appellant must first d emonstrate

that the performance of counsel was deficient. To succeed in this regard , appellant

must show that counse l ’s representation fell below an objective standard of reasonableness when viewed at the time of counsel’s co nduct and compared to prevailing professional norms. See Strickland , 466 U.S. at 687-91. Additionally, appel lant must showthat ther

e is a re asonabl e probab ility tha t the resu lt of the pro ceeding would have been differentbut for th e errors of counsel

. Id . at 694. A reasonable probability is one that undermines confidence in the ou tcome. Id

. We begin with a presumption that counsel rendered adequate assista nce. McFarland v. State , 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). Appellant, then, has the b urden toprove that counsel’s assistance was ineffective bya prepon derance of the evi dence. Patrick v . State , 906 S.W.2d 481, 495 (Tex.Crim.App. 1995). We review the totality of the representation to determine counsel’s effectiveness3

and any allegations of ineffectiveness must be firmly founded in the record. Thompson v. State , 9 S.W.3d 808, 813(Tex.Cri m.App. 19 99). Appellant

contends

that coun sel neit her requested that veni reperson Tirey be struck for ca use nor used a peremptory challenge on Tirey a nd that this failure constit ute d ineffective assistan ce of cou nsel man dating re versal. Counsel asked each venireperson to designate what they thought was the most impo rtant purp ose of pu nishment from a list of three purposes. Tirey opined that protection of societ y i s most important. Appellant contends, on appeal, that this answer and the fact t hat Tirey was the newly el ected Co unty Attorney for Hale County should have been a warning to counsel that Tirey would do everything in his power to incarcerate appellant, yet counse l did no thi ng to try and disqual ify

him for cause

. However, this argument ignores several important facts in the record. First, 26 members of the jury panel answered the question exactly or substantially the same as Tirey. Second, there is no evidence in the record t h at Tirey, or any of the other venirep ersons, could not be fair a nd impart ial. Rather, appellant assumes that since Tireyis the newly elected County A ttorney he is inherently biased. Such an assu mption is not supp orte d b y the reco rd and, th erefore, a ppellan t has not met his b urden. Patrick , 906 S.W.2d at 495. Third, a review of the total record reveals that counsel disqualified three other membersof the jury panel for not being ableto consider the entire punishment range. This is some indication that counsel was representing appellant in a manner consistent with prevailing professional norms. Fu rther, therecord contains numerous pretrial motions and trial obj ections u pon whic h counse l was ab le to obtain favo rable rul ings.4

Finally, appellant finds fault in the fail ure of cou nsel to u se a pere mptory challenge
a gainst Tirey. However, appellant’s contention is no more than an invitation to second guess the trial strategy of counsel . Th e appell ant has th e duty to present arecord w ith evidence of the reasons that the allegedly ineffec tiv e assistance was not trial strategy. Jackson v. State , 877 S.W. 2 d 768, 771 (Tex.Crim.App. 1994). If the record does not presentevidence of the reasons for the questioned actions or omissions, then the appe llate court would ha ve t o specul ate as to the reaso ns. Id . A decision based on speculation would be b ased on n o eviden ce. Id

. As the record before us is silent regarding the
re asons cou nsel did not use aperempto ry chall enge aga inst Tire y, we wil l not spe culate as to wha t those re asons we re or wha t trial st rategy wa s being employed by couns el.
In short, the totality of

the circumstances do not reveal that counsel’s performance fell beneath objectiv e standar ds of re asonabl eness. Strickland , 466 U.S. at 690. Accordingly, appellant cannot meet the first prong of Strickland . Inasmuch as appellant has failed to show that coun sel’s ac tions we re deficient, there is no need to conduct t he harm analysi s. See T EX . R. A PP . P. 47.1 The judgment of the trial court is affirmed.

Mackey K. Hancock Justice Do not pu blish.