Freeman, Consuelo AKA Freeman, Connie AKA Rodriguez, Connie ( 2003 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. 2156-01

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CONSUELO FREEMAN, Appellant

v.

THE STATE OF TEXAS

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ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRTEENTH COURT OF APPEALS NUECES COUNTY

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   Hervey, J., delivered the opinion of the Court in which Keller, PJ., Womack, Keasler, Holcomb and Cochran, JJ., joined. Meyers, J., filed a dissenting opinion in which Price, J., joined. Price, J., filed a dissenting opinion in which Meyers, and Johnson, JJ., joined.



OPINION

In this case, we decide that the record does not support the decision of the Court of Appeals on an ineffective assistance of counsel claim that appellant raised for the first time on direct appeal. Appellant raised several ineffective assistance of counsel claims for the first time on direct appeal without having developed a record in the trial court during the trial or during a motion for new trial hearing for the purpose of establishing these claims. In a 2-1 decision, the Court of Appeals held that appellant's trial counsel was ineffective for failing to file a motion to recuse the trial judge because of comments the trial judge made which appellant claimed raised the issue of the trial judge's impartiality. See Freeman v. State, No. 13-98-587-CR slip op. at 7 (Tex. App.-Corpus Christi, delivered August 16, 2001) (nonpublished). The dissenting opinion claimed that, in the absence of a more fully developed record, the presumption that counsel's conduct was reasonable was not overcome. See Freeman, slip op. at 1-2 (Hill, J., dissenting); see also Strickland v. Washington, 104 S. Ct. 2052, 2065 (1984) (counsel's conduct presumed reasonable).

We exercised our discretionary authority to review this decision. The sole ground upon which we granted the State's discretionary review petition states:

Did the Court of Appeals err when it effectively held that the failure to seek recusal of the trial judge was per se ineffective assistance of counsel as a matter of law, in conflict with the dissenting opinion, with another court of appeals, and on an important question of state and federal law that has not been, but should be, settled by the Court of Criminal Appeals?

We have held several times that in cases like this "the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." See, e.g., Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Cr.App. 1999). The United States Supreme Court generally agrees. See Massaro v. United State, 123 S. Ct. 1690, 1694 (2003) (when ineffective assistance of counsel claim is raised on direct appeal, "appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose").

The record in this case is insufficient to support the conclusion reached by the Court of Appeals on the ineffective assistance of counsel claim it addressed because appellant did not develop a record in the trial court for the purpose off establishing this claim. See Thompson, 9 S.W.3d at 815. The Supreme Court in dicta did state in Massaro that some ineffective assistance of counsel cases may be disposed of on direct appeal where "trial counsel's ineffectiveness is so apparent from the record." See Massaro, 123 S.Ct. at 1696. Without more guidance from the Supreme Court, however, we decline to hold that this is such a case. See Freeman, slip op. at 1-2 (Hill, J., dissenting).

The judgment of the Court of Appeals is reversed and the case is remanded there for further proceedings consistent with this opinion.

Hervey, J.

Delivered: November 5, 2003

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