John Clifton v. The State of Texas--Appeal from 241st District Court of Smith County

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Laws-info.com » Cases » Texas » 12th District Court of Appeals » 2003 » John Clifton v. The State of Texas--Appeal from 241st District Court of Smith County

State: Texas

Court: Texas Northern District Court

Docket No: 12-03-00313-CR

Case Date: 09/24/2003

Plaintiff: John Clifton

Defendant: The State of Texas--Appeal from 241st District Court of Smith County

Preview:David Alan Clemments v. State of Texas--Appeal from
128th District Court of Orange County
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.
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