Rodney Milum v. State ( 2015 )

Opinion issued December 10, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-01027-CR
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RODNEY MILUM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Case No. 1347034
CONCURRING OPINION
I concur in the Court’s judgment and join in its opinion except in regard to
its discussion of the second issue of appellant, Rodney Milum. 1
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In particular, I express concern regarding the majority’s analysis of the
“performance component” of appellant’s ineffective assistance of counsel claim as
well as its response to the State’s complaint that appellant did not “raise[]” an
In his second issue, appellant argues that his trial counsel provided him with
ineffective assistance because counsel “failed to object to the trial court’s
imposition of [certain] conditions of community supervision on appellant, which
are unconstitutional and otherwise invalid.” The two conditions, to which his trial
counsel did not object, place restrictions on appellant’s ability to attend religious
services/activities and his ability to access the internet.
To prevail on an ineffective-assistance claim, appellant must show that (1)
counsel’s performance was deficient because it fell below an objective standard of
reasonableness and (2) counsel’s deficient performance caused appellant prejudice,
i.e., there is a reasonable probability that, but for his counsel’s unprofessional
errors, the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984);
Perez v. State, 310 S.W.3d 890, 892–93 (Tex. Crim. App. 2010). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. It is appellant’s burden to establish
both prongs of the Strickland test by a preponderance of the evidence, and the
ineffective-assistance claim until the Court “ordered” him to do so. See Strickland
v. Washington, 466 U.S. 668, 687–88, 694, 697, 104 S. Ct. 2052, 2064, 2068–69
(1984) (explaining ineffective assistance of counsel claim has “performance
component” and “prejudice component”); Andrews v. State, 159 S.W.3d 98, 102
(Tex. Crim. App. 2005) (“[W]hen no reasonable trial strategy could justify the
trial counsel’s conduct, counsel’s performance falls below an objective standard of
reasonableness as a matter of law, regardless of whether the record adequately
reflects the trial counsel’s subjective reasons for acting as she did.”).
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failure to demonstrate either deficient performance or prejudice will defeat a claim
of ineffectiveness. See Perez, 310 S.W.3d at 893; Jackson v. State, 973 S.W.2d
954, 956 (Tex. Crim. App. 1998).
Although a defendant may assert a claim of ineffective assistance of counsel
for the first time on direct appeal, often times the record in such a case is
insufficient. See Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim. App. 2008);
see also Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012);
Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999). Here,
appellant did not file a motion for new trial in the trial court, and the record
presented to this Court on direct appeal is limited regarding his ineffective-
assistance claim. Cf. Tufele v. State, 130 S.W.3d 267, 271 (Tex. App.—Houston
[14th Dist.] 2004, no pet.).
Notably, while appellant devotes the majority of his argument regarding his
ineffective-assistance claim to asserting that his trial counsel’s performance was
deficient, he does not identify how such a deficient performance by his counsel
actually prejudiced him. In his brief, appellant devotes only a single sentence to
arguing that he was prejudiced by his trial counsel’s failure to object to the above-
referenced community-supervision conditions. Specifically, appellant states,
without citation to the record or supporting authority:
. . . [B]ut for [a]ppellant’s trial counsel’s failure to object to the
invalid conditions of supervision, the outcome would have been
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different in that [a]ppellant would either not have been saddled with
unconstitutional and legally invalid conditions of community
supervision for a period of eight years in the first place (had the trial
court sustained the objections), or would at least have clearly
preserved the right to challenge those invalid conditions and seek their
deletion on appeal.
Mere conclusory assertions of prejudice are not enough. In order to prevail
on his ineffective-assistance claim, “the record must affirmatively demonstrate the
meritorious nature of [his] claim,” and appellant must be able to direct this Court to
objective facts in the record to support a lack of confidence in the outcome, i.e.,
proof of prejudice. See Menefield, 363 S.W.3d at 592 (internal quotations
omitted); Bone v. State, 77 S.W.3d 828, 836–37 (Tex. Crim. App. 2002); see also
Applin v. State, 341 S.W.3d 528, 535 (Tex. App.—Fort Worth 2011, no pet.) (“It is
not appropriate for an appellate court to simply infer ineffective assistance based
upon unclear portions of the record.”). Here, the record simply does not provide
such evidence of prejudice.
Because the limited record available in this direct appeal does not support a
finding of prejudice, I would hold that appellant has not met his burden under the
second prong of the Strickland test and cannot prevail on his ineffective-assistance
claim at this juncture. 2 See Ladd v. State, 3 S.W.3d 547, 570 (Tex. Crim. App.
2
It should be noted that appellant is not without recourse in regard to his
ineffective-assistance claim. It is well-established that appellant “can resubmit his
claim via an application for writ of habeas corpus,” which would allow an
opportunity for “a dedicated hearing [in the trial court] to consider the facts,
4
1999) (defendant’s failure to make any effort to prove prejudice from defense
counsel’s allegedly deficient performance during punishment phase of capital
murder trial precluded relief on ineffective-assistance claim); Mitchell v. State, 989
S.W.2d 747, 748 (Tex. Crim. App. 1999) (defendant claiming ineffective
assistance of counsel must affirmatively prove prejudice from counsel’s deficient
performance).
Terry Jennings
Justice
Panel consists of Justices Jennings, Bland, and Brown.
Jennings, J., concurring.
Publish. TEX. R. APP. P. 47.2(b).
circumstances, and rationale behind counsel’s actions” and would provide
appellant with an opportunity to establish that he has been prejudiced by his
counsel’s failure to object to the challenged community-supervision conditions.
See Thompson v. State, 9 S.W.3d 808, 814–15 (Tex. Crim. App. 1999); see also
Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (“[W]e have held
that, when direct appeal has not provided an adequate record to evaluate a claim
which might be substantiated through additional evidence gathered in a habeas
corpus proceeding, we will not apply the general doctrine that forbids raising a
claim on habeas corpus after it was rejected on appeal.”).
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