Th e se fa c ts a re take n f ro m th e te sti mony

pr e se nte d at tr ia l. 1 

### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 9 -00 193 -CR

M oha m m ad A shr af

, A ppe lla nt
v. The State of Texas, App ellee

F ROM COUNTY COURT AT LAW NO. 4 OF TRAVIS COUNTY NO. C-1- CR-08 -20 6754 , HO NORAB LE MI KE DENTO N , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N
After a jury trial, appe llant Mohammad Ashra f wa s found g uilty of family -violence assault. See Tex. Pena l Code Ann. § 22.01 (West Supp. 2009). Pursuant to a punishment ag ree ment be tw e e n A sh ra f and th e State , th e tr ia l c ourt a sse sse d p un ish me nt at on e y e ar’ s im pr iso nme nt, probate d to two y ear s’ community supervision, and a $4,000 fine. Ashraf now appe als, asser

ting that he re c e ive d in e ff

e c tiv e a ssi sta

nc e of c ouns e l. We a ff

ir m th e jud g me nt o f t

he tr ia l c ourt
. BACK GR OUND As hr a f w a s arr e ste d at hi s ho me on the mor nin g of Ap ri l 15 , 2 00 8, a ft e r h is a du lt daug hter, M.A., c all ed t h e p o l ice dur ing a domestic dispute betwee n Ashraf and his wife, S.A. 1 Ashraf , M.A., and S.A. ea ch testified at trial, with Ashraf ’s version of t he events differ ing from the version pre sented by

M.A. and S.A.2 S.A. testified that at appr ox imately 2:30 a .m., A shraf came into the room where she was slee ping w ith M.A. and demande d the house telephone. S.A. state d that Ashraf beg an y elling ang rily at her , and that when she g ot up and walked into the hallway to show him the location of the tel ep h o n e, he pulled her

hair a nd pushed her

into a wall with both hands, ca using he r pain in her low e r b a c k w he n s he hit

the wa ll. M.A. testified that whe n Ashraf came into the room and beg an y elling at her mother about the telephone , she bec ame sc are d and eve ntually called 911 be cause she “c ould tell i t was g etting out of

hand.” M.A . further

explained that while she was on the phone with the 911 ope rator, she looked out into the hallway and sawAshraf

push S.A. into a wall. Ashraf , on the other ha

nd, maintained that no phy sical alter cation had occur red a nd that he mere ly y elled at his w ife beca use he thoug ht she was hiding the telephone in order to listen to his phone conver sations. The de fensive the ories at tria l were that M.A. ca lled the police to the house and maintained her story about the assault beca use she rese nted Ashraf for b ei n g a s trict disciplinarian whe n she wa s a child and tha t S.A. was using the assault cha rg es in order to g ain a more fa vorable proper

ty settlement in the couple’ s pending divorce
. Ashraf testified that S.A. was “trying to g et as much money and as much materia l f rom me as possible.” After d ef en s e c o u n s el
ra ise d th e iss ue of S.A .’ s and M. A. ’s mot ive s f or te sti fy ing , th e tr ia l c ourt

a llo we d th e State to e lic it testimony reg ardingprior incidents in which A shraf had phy sically

abused his wife and childre n. L arr y Flanike n, a patr ol deputy

with the Travis County

Sheriff’ s Offic e, testi fied that he wa s dispatched to Ashra f’s home on the morning o f April 15, and that whe n he ar rived, M.A. inf or me d h im that he r p are nts ha d b e e n in an alt e rc a tio n. F lanik e n tes tif ie d tha t he the n spo ke wi th S.A. and observed redness and swelling on her lower back, consist ent wit h her story that Ashraf had3

pushed her

into a wa ll. Flaniken state d that when he questioned Ashra f about the inc ident, Ashraf maintained that no alterc ation had occurre d. Ba sed on his observations and the statements of M.A.
and S.A ., F lanik e n a

rr e ste d A sh ra f f

or a ssa ult
. After hear ing the evidenc e, the jury found Ashra f g uilty

of assa ult and made a

n
a dd iti on a l f

ind ingof fa mil y vio le nc e . A sh ra f a

nd the State the n ne g oti a te d a punis hme nt a g re e me nt, which the trial court f

ollowed, assessing punishment at one y ear ’s imprisonment, probated to two y ear s’ community

supervision, and a

$4,000 fine. This appe al followed.
STA ND AR

D O F RE VI EW Claims of ineffe ctive assist an ce of counsel a

re g overne d by

the United States Supreme Court’s de cision in Strickland v. W ashington . 466 U.S. 668 (1984); see also He rnandez

v . S tat e , 98 8 S. W.2 d 7 70 , 7 70 (T e x. Cr im. Ap p. 19 99 ) ( ho ldi ngthat Strickland sta nd ard a pp lie s in noncapital se ntencingproce eding s). Under the two-prong ed Strickland sta nd ard , a de fe nd ant m

us t show that (1) c ounsel’s per formanc e wa s deficie nt and (2) c ounsel’s def icient per formanc e prejudice d the def

ense, r esulting in a

n unreliable or fundame ntally unfair outc ome. See Strick land , 466 U.S. at 687-88. The de fenda nt bear s the burden of

proving ineffe ctiveness by a pre pondera

nce of the e vidence , and allegations of i neff ectivene ss will only be sustained if the y are firmly

founded in the rec ord. Ro dr igu e

z v . S tat e , 899 S.W .2d 658, 665 (Tex. Crim. App. 1995).

DI SCU SSIO N I n a sing le issue on appea l, A shraf argues that his trial counsel provided ine ffe ctive assistance . Specifica lly , Ashraf complains that one o f h i s t wo t rial lawy ers a cted inef fec tively by (1) a nnoy ing the jury

panel dur ing voir

dire by repe atedly

using the word “ okay , ” (2 ) o p en i n g the4

door to previous a ssaults by Ashraf o n S .A. by

questioning S.A. a

bout the pending divorce , (3) “possibly ” advising Ashraf to tell S.A. not t o come to cour t, (4) fa iling to object to the a dmission of a r ecor ding of

M.A.’s 911 ca ll into evidence, ( 5) fa iling to object to he ar s ay testimony

by Fl an i k en, (6) opening the door to pre vious assaults by Ashraf on M.A. by

questioning A shraf about M.A.’s motives for calling the police, and ( 7) “a bandoning ” his client by

declining to repre sent him on a pp e a l. Other tha

n listi ng the seve n instances of conduct noted a

bove and se tting for

th the g ener al standar d for pr evailing on a cla im of ineffe ctive assistanc e of c ounsel, Ashra f provides no argument or authorities to support his ineffe ctive-a ssistance c la im
. A c c o r dingly , this iss ue is waive d on the g round that it is inadequately briefe d. See Tex . R. App . P. 38 .1 (i ) ( a pp e lla nt’ s b ri e f m

us t contain cle ar a

nd concise argument for c ontentions made, with appropr iate citations to authorities
and re c or d) ; se e als o A lv arad o v . S tat e , 912 S.W .2d 199, 210 (Tex. Cr i m . App. 1995) (“ [T] he rig ht to appellate r eview e x tends o n ly to complaints made in ac corda nce w ith our rules of appellate proce dure.” ).

Even if Ashr af’ s claim was not wa ived on the basis of ina dequate briefing , he has failed to establish the nece ssary require ments of a c laim of ineff ective a ssistance of c ounsel. I n order to preva il, Ashraf must prove by a pre pondera

nce of the evidenc e that (1) counsel’s pe rfor mance was defic ient and (2) it prejudiced the defe nse. See Strick land , 46 6 U. S . at 68 7- 88 ; Rodriguez , 8 9 9 S
. W
. 2 d at 665. Ashraf has pre sented no a

rg ument to support either of the S tr ic k la nd
re qu ir e me nts a s to any

of the se ve n in sta

nc e s o f c on du c t men tio ne d in his br ie f. F ur

the rm or e , in order to preva il on his i neff

ective- assistance claim, Ashra f must r ebut the strong presumption that counsel’s co n d u ct falls within the wide ra ng e of r easona

ble profe ssional assistance. See Miniel5

v . S tat e , 8 31 S.W. 2d

31 0, 32 3 ( Te x. Cr im. Ap p. 19 92 ); se e als o Ga rza v . S tat e , 213 S.W .3d 338, 348 (Tex. Crim. App. 2007) (“I f counsel’s rea sons f or his conduct do not appe ar in the r ecor d and ther e is at least the possibility

that the conduc t could have been gr ounded in leg itimate trial strateg y , we will defer

to counsel’s de cisions and deny relief on an inef

fec tiv e as s i s t an ce claim on direc t appea l.”). Ashr af ha s made no attempt to rebut this st rong presumption as to any of the a ctions he complains of on appe al.

For example, while Ashraf

contends that c ounsel acte d ineffe ctively by opening the door to ev i d en ce of prior inc idents of phy sical abuse during cross-e x amination of M.A. and S.A., he do e s n ot a dd

re ss the p os sib ili ty

that c ouns e l w a s p ur su ingle g iti ma te tr ia l strate g y by c ro ssexamining both witnesses on their mot i v es fo r testify ing. G iven that trial counse l’s questions
wer e consistent with the def ensive theor ies that S.A. testified to g ain an a dvantag e in the couple ’s pe nd ingdiv or c e and pr op e rt y se ttl e me nt and that M. A. re se nte d A sh ra f f or his dis c ipl ina

ri an s tyle of par enting , Ashraf

has not rebutted the presump tion that these ac tions repre sented l e g i t i m a t e t r i a l s t r a t e g y.

Many of Ashra f’s c omplaints also lack foundation in the rec ord. “A ny alleg ation of ine ff e c tiv e ne ss m

us t be fi rm ly

fo un de d in the re c or d, and the re c or d mu st a ff ir ma tiv e ly de mon str a te the alleg ed inef

fec tiveness.” Tho mp so n v . S tat e , 9 S.W .3d 808, 813 (Tex. Crim. App. 1999). The
re c or d is sil e nt w ithre sp e c t to the c on te nti on that Ash ra f’ s cou ns e l adv ise d h im t o te ll S. A. no t to come to cour

t for trial. S.A. testified at trial that Ashraf had pressured her t o “drop the case .” S he further testified, “And the n last wee k he said y ou don’t have to show up, and I told him I would g et
arr ested a nd he said no all y ou have to do is don’t show up, e ven I talked to my

attorney about it.” Ashraf had two def

ense attorney s in this case and ma y also have had a divorce lawy er, a lthough the6

re c or d is no t c le a

r i n th a t r e g ard . I f i n f

a c t on e of the se a tto rn e y s a c tua lly did a dv ise As hr a f t o te ll S.A. not to come to court, there is no indication that it was the attorne y whose c onduct is the subject of As hr a f’ s p re se nt a

pp e a l. Ashraf ’s claim that trial counsel “ abandone d” him on appea l also lacks foundation in the rec ord. Rather , the cler k’s re cord r efle cts that afte r filing a noti ce o f appea l on Ashraf ’s be ha lf , tr ia l c ouns e l pr op e rl y fi le d a motio n to with dr aw, ind ic a tin g that he ha d not be e n re ta ine d to repr esent Ashraf on appea l. This motion was g rante d by the trial court. Whil e this a pp ea l was pending , Ashraf

filed a r equest to be de clar ed indig ent and the a ppeal wa s abate d to allow the trial court to m ake an i ndige ncy deter mination. After finding Ashraf indige nt, the t rial court appointed him appellate c ounsel. I t is unclea r how this turn of eve nts could possibly indicate that tria l counsel provided inef

fec tive assistance
. There is also no foundation i n t h e re co rd for Ashraf ’s claim that the jury

was “annoy ed” w ith trial counsel’s use of t he word “okay .” While Ashraf complains that counsel “ used the word ‘ Okay ’ g rating ly , annoyingly , and inef fec tively [80] times,” there is no indication that
c ou ns e l’ s r e p e t i t i o n o f t h e w o r d h a d an y e f f e c t o n t h e j u r

y w h a t s o e v e r . T h e w o r d “ o k a y ” is commonly

used by attorney s in voir dire as a means of acknow ledg ing statements or questions by potential jurors, and in fa ct the prose cutor a lso use d the word “okay” over 50 times during voir dire. Fur thermore , while Ashra f complains of counsel’s failure to object to the admission of a re c or din g of M. A. ’s 91 1 c a ll i nto e vid e nc e , h e do e s n ot e xpla in t he g ro un ds on

wh ic h d e fe ns e counsel should have objected, or h o w t h i s fa i l u re to objec t prejudice d the def ense. Similarly , he complains that counsel “ did not obje ct t o h ea rs ay testimony

by the policeman,” but presents no argument as to how this failure to objec t may have pr ejudiced the defe nse, or why this testim ony

was7

no t a dmi ssi ble un de r a

n e xce pti on

to t he he arsa y

ru le . A s an a

pp e llate c ourt , it

is n ot o ur

ta sk to speculate as to the nature of a n appellant’ s leg al theory
. See A lvarado , 912 S.W .2d at 210. F ina lly , A sh ra f a

rgue s in his br ie f t hat “ [b]ut fo r de fe ns e c ouns e l’ s poo r job , th e re su lt of the trial mig ht have been a not g uilty verdic t.” Thi s is not the appropriate standard f or ineff ective
a ssi sta nc e of c ouns e l. Ra the r, “ [t]he de fe nd ant m us t sh owtha

t th e re is a re a so na ble pr ob a bil ity that, but fo r counsel’s unprofe ssional error s, the result of the pr ocee ding w ould have be en diffe rent.” Strickland , 466 U.S. at 694. Ashraf has made no showing , and in fa ct does not eve n argue, that ther e is a rea sonable proba

bility that the re sult of the proce eding would have be en diffe rent in the a bsence of c ouns e l’ s e rr or s. As a re su lt, he c ann ot p re va il o n h is c la im o f i ne ff e c tiv e a ssi sta

nc e of c ouns e l. See id. I n light of the fore g oing, we over rule Ashr af’ s issue on appea l and af firm the trial court’s judg ment of convic tion.
CO NC LU SION

We affir m the judgme nt of conviction.

______ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ____ Diane M. H enson, Jus tice Be fore J ustices Patterson, Pury ear and He nson Affir med Filed: Jul y

1, 2010 Do No t Pu

bli sh