David Alan Clemments v. State of Texas

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-01-064 CR ____________________ DAVID ALAN CLEMMENTS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 128th District Court Orange County, Texas Trial Cause No. A-000286-R O P I N I O N A jury convicted David Alan Clemments of aggravated sexual assault of a child and sentenced him to seventy-five years' confinement in the Texas Department of Criminal Justice, Institutional Division. Clemments appeals claiming he received ineffective assistance of counsel. The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). See Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986). The defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689. Declining to present defensive evidence is not per se ineffective assistance. See Bernal v. State, 930 S.W.2d 636, 641 (Tex. App.--Corpus Christi 1996, pet. ref'd). The motion for new trial did not raise ineffective assistance and no hearing was conducted. The record is therefore silent as to why trial counsel did not put Clemments on the stand during guilt/innocence. The State posits that considering Clemments prior felony convictions, which were introduced during the punishment phase, it could have been sound trial strategy. See Tex. R. Evid. 609(a). Appellate counsel does not refute this possibility. The record is also silent as to why Clement's counsel did not present any other witnesses in his defense or what their testimony would have regarded. The record does not establish the actual existence of any favorable witnesses. To find trial counsel was ineffective based on any of the asserted grounds would call for speculation, which we will not do. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Without testimony by trial counsel, we cannot meaningfully address her reasons for not presenting evidence. Accordingly, we hold Clemments has not satisfied the first prong of Strickland. See Davis v. State, 930 S.W.2d 765, 769 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd). Clemments' sole issue is overruled and the judgment of the trial court is AFFIRMED. PER CURIAM Submitted on May 21, 2002 Opinion Delivered May 29, 2002 Do not publish Before Walker, C.J., Burgess, and Gaultney, JJ.