How to Prove Bad Lawyer Representation In Texas ?
A counsel's ineffectiveness may render a plea of nolo contendere or guilty involuntary. See Haynes v. State, 790 S.W.2d 824, 828 (Tex.App.-Austin 1983, no pet.).
Claims of ineffective assistance of counsel are evaluated under the two-step analysis articulated in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).
The first step requires appellant to demonstrate that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. See Strickland, 466 U.S. at 688.
To satisfy this step, appellant must identify the acts or omissions of counsel alleged as ineffective assistance and affirmatively prove they fell below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996).
The reviewing court will not find ineffectiveness by isolating any portion of trial counsel's representation, but will judge the claim based on the totality of the representation. See Strickland, 466 U.S. at 695.
The second step requires appellant to show prejudice from the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999).
To establish prejudice, an appellant must prove that but for counsel's deficient performance, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694.
In any case analyzing the effective assistance of counsel, we begin with the strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.App.1994) (en banc).
We must presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See id.
Appellant has the burden of rebutting this presumption by presenting evidence illustrating why trial counsel did what he did. See id.
Appellant cannot meet this burden if the record does not affirmatively support the claim.
Jackson v. State, 973 S.W.2d 954, 955 (Tex.Crim.App. 1998) (inadequate record on direct appeal to evaluate whether trial counsel provided ineffective assistance);
Phetvongkham v. State, 841 S.W.2d 928, 932 (Tex.App.-Corpus Christi 1992, pet. ref'd, untimely filed) (inadequate record to evaluate ineffective assistance claim);
Beck v. State, 976 S.W.2d 265, 266 (Tex.App.-Amarillo 1998, pet. ref'd) (inadequate record for ineffective assistance claim, citing numerous other cases with inadequate records to support ineffective assistance claim).
A record that specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd).