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In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-12-00267-CR

____________________

DAVID CLIFFORD PEDDER JR., Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________ _____________ _

On Appeal 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. 2012).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.
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Pedder was accused of having sex with a twelve-year-old girl, M.S.,

2 at his 

place of employment, an automotive-repair garage. Pedder knew 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 picked 

M.S. up before work began each Saturday and then, after work, took 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 the 

person who owned 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 to 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). 
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In a single issue, Pedder claims that his 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, Pedder 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.” But, 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 failure 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 trial. Subsequently, the trial court conducted a hearing, and trial 

counsel testified 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 reviewed his client’s files, assumed that he had reviewed the file in 

Pedder’s case, and specifically recalled that there were “several occasions” that he 

had “thorough discussions with the DA concerning the evidence of the case.” 

Pedder’s trial counsel also testified that he had been to the garage. Trial counsel
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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 chose not to file motions seeking

pretrial discovery, nor was he questioned about his strategy in not calling 

additional witnesses.

The prosecutor also testified at the hearing on Pedder’s motion for new trial. 

According to the prosecutor, while there is usually a note reflecting that someone 

reviewed 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. The prosecutor expressed doubt 

that the disks would have been provided had Pedder’s trial counsel not reviewed

Pedder’s file. 

Pedder presented six witnesses during the hearing, who explained that 

Pedder did not have keys to access the garage when the alleged assault occurred. 

One of these, the owner of the garage, had testified during Pedder’s trial. Pedder’s 

trial counsel 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 let 
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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. Washington, 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 687, 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 and professional assistance.” Garza, 213 S.W.3d at 348. In reviewing 

complaints about trial counsel’s alleged deficiencies, an appellate court must 
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“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. Goodspeed 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. Trial counsel was not asked to explain why he did not photograph the garage 

where the assault occurred. Therefore, no explanation regarding trial counsel’s 

strategy on these matters appears of record. With respect to reviewing the State’s 

file, trial 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 reviewed 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 claim.” 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 be insufficient to demonstrate that trial counsel’s 

conduct was ineffective, unless the challenged conduct was “‘so outrageous that no 
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competent attorney would have engaged in it.’” Id. (quoting Garcia v. State, 57 

S.W.3d 436, 440 (Tex. Crim. App. 2001)). On 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 when 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 parte 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

Do Not Publish

Before Gaultney, Kreger, and Horton, JJ.