George Zeigler v. State ( 2006 )

In The  

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-06-080 CR ____________________

GEORGE EARL ZEIGLER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 163rd District Court Orange County, Texas Trial Cause No. B050419-R

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MEMORANDUM OPINION

George Earl Zeigler appeals his conviction and eight-year sentence for forgery. Zeigler entered an open plea and pled true to the State's enhancement allegations. He filed a motion for new trial, but did not allege ineffective assistance of counsel. The motion was overruled by operation of law without a hearing having been conducted. The sole issue raised on appeal asserts ineffectiveness of trial counsel. Because the appellate record does not establish counsel's ineffectiveness, we affirm.

Under the two-pronged test articulated by the United States Supreme Court and adopted by the Court of Criminal Appeals, the appellant has the burden of proving by a preponderance of the evidence that: (1) counsel's representation fell below an objective standard of reasonableness; and (2) the deficient performance prejudiced the appellant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). To establish the first prong, he must show "there is, in fact, no plausible professional reason for a specific act or omission." See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). "Any allegation of ineffectiveness must be firmly founded in the record[.]" Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In most cases, a silent record will not overcome the strong presumption of reasonable assistance. Id. at 814. To establish the second prong, Zeigler must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).

Zeigler bases his claim on a supposed lack of adequate investigation. By pleading guilty without the benefit of a plea bargain agreement, Zeigler essentially threw himself upon the mercy of the court. Zeigler contends trial counsel must have been ineffective because he presented no mitigating evidence during the punishment hearing. He does not discuss the evidence that defense counsel could have brought to the attention of the trial court. Appellant did not request that the pre-sentence investigation report be included in the clerk's record, but during the punishment hearing, the prosecutor mentioned that Zeigler had six prior felony convictions and victimized his own mother in committing the offense on trial.

Appellant did not present his claim of ineffective assistance in his motion for new trial. Thus, we do not have the benefit of a hearing in which trial counsel had the opportunity to explain his trial strategy and to describe his investigation of the case. Because the record does not show that mitigating evidence existed or that counsel's failure to present a more forceful argument in punishment was not based upon sound trial strategy, Zeigler failed to establish deficient conduct by trial counsel. See Bone, 77 S.W.3d at 834-35; Thompson, 9 S.W.3d at 813-14. Furthermore, nothing in the record suggests trial counsel's performance negatively affected the outcome of the case. Zeigler's issue is overruled and the judgment is affirmed.

AFFIRMED.

______________________________

STEVE MCKEITHEN

Chief Justice

Submitted on September 5, 2006

Opinion Delivered October 4, 2006

Do Not Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.