1 In The 

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

____________________ NO . 09
- 1 2
- 00 267
- C R



### ____________________ DAVID CLIFFORD PEDDER JR . , Appellant
V. THE STATE OF TEXAS , Appellee

_______________________________________________________ _____________ _ On A ppeal from the 128th District Court Orange County, Texas Trial Cause No . A
- 100640
- R

________________________________________________________ ____________ _ MEMORANDUM OPINION Claiming that his attorney rendered ineffective assistance of counsel, David Clifford Pedder Jr. appeals his conviction for aggravated sexual assault of a child.
See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (West Supp. 20 12 ). 1 We affirm the trial court’s judgment.

1 We cite to the current version of the statute, as the amendments do not affect the issue set forth in this appeal.2 Pedder was accused of ha ving sex with a twelve

- year - old girl , M.S. , 2 at his place of employment, an automotive

- repair garage

. Pedder k new M.S. before the alleged assault and assisted in getting her a job that involved working on Saturdays at the garage

. The testimony at the trial reflects that Pedder customarily pick ed
M.S. up before work began each Saturday and then , after work, t ook her to her home in a nearby town. According to M.S. , after arriving at the garage one Saturday morning before the garage opened for business and before others arrived, Pedder had sex with her. Pedder testified at the trial that he never had sex with M.S. According to
Pedder , his adult stepson had engaged in sex with M.S. , and Pedder had been paying M.S. money to keep her quiet

. In presenting his case, Pedder also called t he person who owne d the garage as a witness. The owner testified that the assault could not have occurred as M.S . described because when the assault allegedly occurred, Pedder did not have keys t o enter the garage. The owner also testified that he always arrived at the garage well before it opened , and he never found
Pedder or M.S. in the garage before he opened the garage for business

.

2 To protect the privacy of the child who the jury convicted Pedder of assaulting, we identify the child by using the initials of the pseudonym assigned to the child in the indictment , as the Texas Constitution grants crime victims “ the right to be treated with fairness and with respect for the victim ’ s dignity and privacy throughout the criminal justice process [

. ] ” Tex. Const. art. I, § 30 (a)(1)

.3 In a single issue, Pedder claims that h is trial counsel rendered ineffective assistance. According to Pedder , his trial counsel failed to adequately prepare for trial by reviewing the State’s file and also failed to interview and present potentially exculpatory witnesses at trial. On appeal, Pe dder expands his ineffectiveness claim , asserting that his trial counsel failed to file pretrial discovery
and to photograph the crime scene

. According to Pedder, such photographs “would have aided the jury in a not guilty verdict

. ” B ut , appellate counsel offers no further explanation regarding how the photographs or the filing of written discovery motions would have secured relevant evidence. Appellate counsel further fails to explain why the lack of photographs of the scene or the failu re to file written discovery motions caused the jury to render an improper verdict. After the trial court rendered judgment, Pedder’s appellate counsel filed a motion for new tri a l. Subsequently, the trial court conducted a hearing, and trial counsel test ified at the hearing. Trial counsel explained that he did not have “an independent recollection of looking” at the State’s file, but he stated that he normally review ed his client’s file s , assumed that he had reviewed the file in Pedder’s case , and specifi cally recalled that there were “several occasions ” that he had “ thorough dis cussions with the DA concerning the evidence of the case.” Pedder’s trial counsel also testified that he had been to the garage. Trial counsel4 was never asked during the hearing whether he had taken any photographs or why he chose not to take photographs of the scene . Additionally, trial counsel denied that he told Pedder that he was not prepared for trial. During the hearing , trial counsel was not asked anything about why he chos e not to file motions seeking pretrial discovery, nor was he questioned about his strategy in not calling
additional witnesses.
T he prosecutor also testified at the hearing on Pedder’s motion for new trial. According to the prosecutor, while there is usual ly a note reflecting that someone review ed the district attorney’s file, that is not always the case

. After reviewing the
file at the hearing , the prosecutor testified that he gave Pedder’s trial counsel any required information , along with several disks

. T he prosecutor expressed doubt that the disks would have been provided had Pedder’s trial counsel not review ed
Pedder’s file

. Pedder presented six witnesses during the hearing, who explained that Pedder did not have keys to access the garage when the alle ged assault occurred

. One of these, the owner of the garage, had testified during Pedder’s trial. Pedder’s trial c ounsel acknowledged the importance of showing that Pedder did not have keys to access the garage , of proving that the assault could not have happened as
M.S. alleged , and of demonstrating that the owner was the person who always let5 Pedder and M.S. into the garage after he opened it

. Trial counsel testified that he spoke with some of the witnesses who testified at the hearing on the motion for new trial ; he also testified that with respect to others , he either could not recall speaking with them or did not know who they were

. He was not asked to explain why he chose to call only the owner of the garage in an effort to establish that Pedder did not have keys to the garage. We apply a two

- pronged test to resolve ineffective assistance of counsel claims. See Strickland v. Washing ton , 466 U.S. 668, 687 (1984); Garza v. State , 213 S.W.3d 338, 347

- 48 (Tex. Crim. App. 2007); Thompson v. State , 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). To establish the ineffective assistance of counsel, the appellant must show by a preponderance of the evidence 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 6 87, 694; Garza , 213 S.W.3d at 347

- 48; Thompson , 9 S.W.3d at 812. But, as Garza explained, our review of ineffective assistance claims is “highly deferential” to trial counsel, as we presume “that counsel’s actions fell within the wide range of reasonable a nd professional assistance.” Garza , 213 S.W.3d at 348. In reviewing complaints about trial counsel’s alleged deficiencies, an appellate court must6 “avoid the deleterious effects of hindsight.” Thompson , 9 S.W.3d at 813. Trial counsel’s decisions are viewed with great deference when trial counsel’s reasons for not undertaking a suggested strategy do not appear in the record. Goodspe e d v.
State , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Although Pedder’s trial counsel testified during the hearing , he was never asked to explain why he chose not to call any specific witnesses during Pedder’s trial

. T rial counsel was not asked to explain why he did not photograph the garage where the assault occurred. Therefore, no explanation regarding trial counsel’s

strate gy on th e se matters appear s o f record. With respect to reviewing the State’s file, t rial counsel did not admit that he failed to review it , and the evidence before the trial court was sufficient to allow the trial court to reject Pedder’s claim that the file had not been review ed by trial counsel before Pedder’s trial.
“A Strickland claim must be ‘firmly founded in the record’ and ‘the record must affirmatively demonstrate’ the meritorious nature of the cla i m.” Id. (quoting Thompson , 9 S.W.3d at 813, 814 (declining to speculate on counsel’s failure to object to hearsay in light of a silent record)). Generally, when faced with a record that does not include an explanation of trial counsel’s strategy, the record before the appellate court is deemed to b e insufficient to demonstrate that trial counsel’s conduct was ineffective, unless the challenged conduct was “‘so outrageous that no7 competent attorney would have engaged in it.’” Id. (quoting Garcia v. State , 57 S.W.3d 43 6 , 440 (Tex. Crim. App. 2001)). O n a record that does not disclose counsel’s strategy, which is the situation presented by this record, we will not second

- guess counsel’s strategy whe n the record does not demonstrate that no competent attorney would have handled the trial in the manner it was handled. See id. (evaluating whether challenged conduct was “‘so outrageous that no competent attorney would have engaged in it’”); see also Ex pa rte Chandler , 182 S.W.3d 350, 356 (Tex. Crim. App. 2005) (“[A] reasonably competent counsel need not perform a useless or futile act[.]”). Because Pedder’s arguments claiming that he received ineffective assistance of counsel are not firmly founded in the record, we overrule his sole issue. We affirm the trial court’s judgment.
AFFIRMED.

________________________________ HOLLIS HORTON Justice Submitted on September 19, 2013 Opinion Delivered October 16, 2013 D o Not Publish Before Gaultney, Kreger, and Horton, JJ.