HealthSouth Corporation and HealthSouth Houston Rehabilitation Institute v. Helen M. Schilling, M.D.--Appeal from 410th District Court of Montgomery County

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State: Texas

Court: Texas Northern District Court

Docket No: 09-04-00050-CV

Case Date: 01/20/2005

Plaintiff: Vincent Gerard Bricout

Defendant: The State of Texas--Appeal from County Criminal Court at Law No. 2 of Harris County

Preview:Vincent Gerard Bricout v. The State of Texas--Appeal
from County Criminal Court at Law No. 2 of Harris
County
11th Court of Appeals
Eastland, Texas
Opinion
Vincent Gerard Bricout
Appellant
Vs. No. 11-03-00330-CR -- Appeal from Harris County
State of Texas
Appellee
Vincent Gerard Bricout appeals from his conviction by a jury of assaulting his wife. The jury assessed his punishment
at 365 days confinement in the Haris County Jail, recommending that he be placed on community supervision. The trial
court followed the jury=s recommendation and placed Bricout on community supervision for 2 years. Bricout asserts in
a single issue that he was denied the effective assistance of counsel at trial. We affirm.
We apply a two-pronged test to ineffective assistance of counsel claims. Wiggins v. Smith, 539 U.S. 510, 521 (2003);
Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Cr.App.1999). First,
Bricout must show that his counsel=s performance was deficient; second, Bricout must show that the deficient
performance prejudiced the defense. Wiggins v. Smith, supra at 521;Strickland v. Washington, supra at 687.
In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the
particular circumstances of each case. Thompson v. State, supra at 813. A defendant must demonstrate that counsel=s
representation fell below an objective standard of reasonableness and prevailing professional norms at the time of the
alleged error. Wiggins v. Smith, supra at 521;Strickland v. Washington, supra at 688-89. A[C]ounsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.@ Strickland v. Washington, supra at 690. An allegation of ineffective assistance must be firmly
founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State,
supra at 814. Our scrutiny of counsel=s performance must be highly deferential, and every effort must be made to
eliminate the distorting effects of hindsight. Strickland v. Washington, supra at 689. The second prong of Strickland
requires a showing that counsel=s errors were so serious that they deprived the defendant of a fair trial, i.e., a trial
whose result is reliable. Id. at 687. In other words, Bricout must show there is a reasonable probability that, but for
counsel=s unprofessional errors, the result of the proceeding would have been different. Id. at 694. A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Id. The ultimate focus of our inquiry
must be on the fundamental fairness of the proceeding whose result is being challenged. Id. at 697.
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 decision making as to overcome the presumption that counsel=s
conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex.Cr.App.2002). Rarely will the trial
record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious
allegation. Id.
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Bricout=s wife did not testify at trial. Bricout=s claim of ineffective assistance of counsel relates to the strategy
employed by his attorney with respect to the admission of evidence from police officers concerning the assault alleged.
There is no testimony from Bricout=s counsel explaining what his strategy was with respect to his objections to the
officers= testimony. Consequently, the record is insufficient to show that Bricout=s counsel=s representation was so
lacking in tactical or strategic decision making as to overcome the presumption that his conduct was reasonable and
professional.
In urging that the record is adequate to address his claim, Bricout solely relies upon the case of Ex parte Felton, 815
S.W.2d 733, 735 (Tex.Cr.App.1991). We find that case to be distinguishable because it is a habeas corpus appeal, not a
direct appeal, in which the record reflects the trial counsel=s reasons for not making certain objections. Id. As
previously noted, our record does not contain counsel=s reasons for the actions of which Bricout complains. We
overrule Bricout=s sole issue on appeal.
The judgment of the trial court is affirmed.
January 13, 2005 PER CURIAM
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Wright, J., and
McCall, J., and Hill, J.[1]
[1]John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.
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