## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 2 - 09 - 363 - CR

EVERETT LEE LAUDERDALE APPELLANT
V. THE STATE OF TEXAS STATE

------------ FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

------------ 

### MEMORANDUM OP INION 1

------------ I. I NTRODUCTION Appellant Everett Lee Lauderdale appeals his eight

- year sentence for possession with intent to deliver a contr olled substance , namely cocaine, of four
grams o r more, but less than 200 grams

. In a single point, Lauder dale claims that he received ineffective assistance of counsel

. We will affirm

.

1 See Tex. R. App. P. 47.4.2 II. F ACTUAL & P ROCEDURAL B ACKGROUND Lauderdale entered an open plea of guilty, and t he trial court ordered that

a presentence investigation report (PSI) be prepared and set a hearing on punishment

. At the punishment hearing, the defense called Lauderdale’s fathe r in

- law and wife to testify. Both testified that although Lauderdale had problems with drugs in the past , he was trying to clean up and deserved a second chance.
L auderdale’s wife testified on cross

- examination that Lauderdale had been arrested in Arkansas once before for a drug

- related offense but that he had never gone to prison

. 2
The defense recom mended community supervision. The trial court sentenced Lauderda le to eight years’ conf inement. Notic e of appeal was timely filed. Counsel for Lauderdale filed a motion for new trial, arguing that the verdict was contrary to the law and the evidence.

III. E FFECTIVE A SSISTANCE OF C OUNSEL In his sole point, Lauderdale claims that he did not receive effective assistance of counsel as guaranteed by the Sixth Amendment because his trial counsel failed to discover, investigate, and prepare against the unadjudicated offense that the State cross

- examined his wife about during the punishment

2 The PSI also included this prior u nadjudicated offense

. The trial court did not review the PSI but placed the original under seal in the clerk’s file at the close of the punishment hearing.3

hearing. Specifically, h e contends that trial counsel failed to request, under article 37.07 , section (3)(g) of the Texas Code of Criminal Procedure, that the State provide notice of intent to offer evidence o f extraneous crime s or bad act s

. A. Standard of Review We apply a two

- pronged test to ineffective assistance of counsel claims. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Salinas v. State , 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State , 65 S.W.3d 59, 62

– 63 (Tex. Crim. App. 2001); Thompson v. State , 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). To establish ineffective assistance of counsel, an appellant must show by a preponderance of the e vidence that his counsel’s representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different. Strickland , 466 U.S. at 68 7, 104 S. Ct. at 2064; Salinas , 163 S.W.3d at 740; Mallett , 65 S.W.3d at 62

– 63 ; Thompson , 9 S.W.3d at 812 ; Hernandez v. State , 988 S.W.2d 770, 770 (Tex. Crim. App. 1999)

. There is no requirement that an appellate court approach the two

pronged inquiry of Strickland in any particular order or even address both components of the inquiry if the defendant makes an insufficient showing on one component. Strickland , 466 U.S. at 697, 104 S. Ct. at 2069. In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case.4

Thompson , 9 S.W.3d at 813. The issue is whether counsel’s assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. See Strickland , 466 U.S. at 688

– 89, 104 S. Ct. at 2065. Review of counsel’s representation is highly deferential, and the reviewing court indulges a strong presumption that counsel’s conduct fell within a wide range of reasonab le representation. Salinas , 163 S.W.3d at 740; Mallett , 65 S.W.3d at 63. A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. Thompson , 9 S.W.3d at
813

– 14. “In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions.” Salinas , 163 S.W.3d at 740 (quoting Mallett , 65 S.W.3d at 63). To overcome the presumption of reasonable professional assistance , “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting Thompson , 9 S.W.3d at 813). It is not appropriate for an appellate court to simply infer
i neffective assistance based upon unclear portions of the record. Mata v. State , 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

B. Record is Insufficient to Establish Ineffectiveness Here, although the record does not include a request by Lauderdale’s

couns el for the State to provide notice of its intent to offer evidence of extraneous crimes or bad acts, the PSI refers to the unadjudicated offense that the State5

questioned Lauderdale’s wife about during cross

- examination. I t is evident from the record that defense counsel received the PSI prior to the sentencing hearing and knew its contents

. D uring closing arguments at the punishment hearing , defense counsel stated, “ Mr. Lauderdale knows that he’s made some mistakes. . . . He started using drugs in Arkan sas, got involved with gangs. It’s all in the [PSI]

. ” Moreover, the record is silent as to trial counsel’s trial strategy in calling Lauderdale’s wife to testify and as to his strategy and methods of discovering, investigating, and preparing for the pu nishment hearing

. Lauderdale did not complain of ineffective assistance of counsel in his motion for new trial , nor does there appear to have been a hearing on his motion for new trial. Generally, a silent record that provides no explanation for counse l = s actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State , 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Edwards v. State , 280 S.W.3d 441, 445 (Tex. App.

–– Fort Worth 2009, pet. ref = d). Because the record is silent as to defense counsel’s strategy and methods used in discovering and preparing for th e complained

- of unadjudicated offense and because the claim of ineffectiveness is not firmly founded in the record , we must
presume that trial counsel rendered reasonable professional assistance. See Salinas , 163 S.W.3d at 740 ; Thompson , 9 S.W.3d at 813

– 14. Consequently, w e6

hold that Lauderdale has not satisfied the first Strickland prong , and w e overrule his sole point. I V
. C ONCLUSION Having overruled Lauderdale’s sole point , we affirm the trial court’s judgment

.

SUE WALKER JUSTICE PANEL: WALKER, MEIER, and GABRIEL, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: September 9, 2010