Ronald Smith v. State ( 2013 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-13-00260-CR
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RONALD SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
_________________________________ ______________________
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 12-13545
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MEMORANDUM OPINION
A jury convicted Ronald Smith of aggravated robbery and assessed a
punishment of life in prison. In one appellate issue, Smith contends he received
ineffective assistance of counsel during the guilt phase of trial. We affirm the trial
court’s judgment.
To establish ineffective assistance, Smith must satisfy the following test:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see Perez v. State, 310
S.W.3d 890, 892-93 (Tex. Crim. App. 2010). “Any allegation of ineffectiveness
must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999). “Appellate review of defense counsel’s representation is
highly deferential and presumes that counsel’s actions fell within the wide range of
reasonable and professional assistance.” Bone v. State, 77 S.W.3d 828, 833 (Tex.
Crim. App. 2002). “Under normal circumstances, the record on direct appeal will
not be sufficient to show that counsel’s representation was so deficient and so
lacking in tactical or strategic decisionmaking as to overcome the presumption that
counsel’s conduct was reasonable and professional.” Id.
On appeal, Smith complains of trial counsel’s failure to (1) object to
testimony that Smith wears dentures when the alleged robber wore dentures; (2)
object to a detective’s testimony that Smith was the robber seen on a surveillance
video and was the person who committed the crime; (3) challenge eyewitness
identification through objections, a motion for expert assistance, a motion to
suppress, and cross-examination; and (4) object to portions of the State’s closing
argument. The record does not indicate that Smith filed a motion for new trial to
allege ineffective assistance. The record is silent as to trial counsel’s tactical and
strategic decision making. See Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim.
App. 2010). Moreover, Smith cannot demonstrate that, but for counsel’s alleged
errors, the outcome of his trial would have been different. See Graves v. State, 310
S.W.3d 924, 929 (Tex. App.—Beaumont 2010, pet. ref’d). Nor is trial counsel’s
ineffectiveness apparent from the record. See Freeman v. State, 125 S.W.3d 505,
507 (Tex. Crim. App. 2003). Under these circumstances, Smith cannot defeat the
strong presumption that counsel’s decisions during trial fell within the wide range
of reasonable professional assistance. See Thompson, 9 S.W.3d at 814. We
overrule issue one and affirm the trial court’s judgment.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Submitted on December 4, 2013
Opinion Delivered December 18, 2013
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.