AFFIRM; and Opinion Filed July 30, 2013.




                                        S  In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas

                                     No. 05-12-00832-CR

                         REID CARLTON RENICKER, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the County Court at Law No. 1
                                  Collin County, Texas
                          Trial Court Cause No. 001-86948-2011

                            MEMORANDUM OPINION
                         Before Justices FitzGerald, Francis, and Lewis
                                   Opinion by Justice Lewis
       A jury found appellant Reid Carlton Renicker guilty of driving while intoxicated. The

trial court assessed his punishment at a $900 fine and 120 days’ confinement, the latter being

suspended in favor of fifteen months of community supervision. In a single appellate issue,

Renicker contends he received ineffective assistance of counsel because his attorney failed to

present a case during the punishment phase, failed to object to the introduction of improper

character evidence during trial, and failed to file a motion to suppress—or object to—evidence of

extraneous bad acts. Because the issues in this appeal involve the application of well-settled

principles of law, we issue this memorandum opinion. See TEX. R. APP. P. 47.4. We affirm.

       The evidence at issue here was offered through the testimony of Plano police officer John

Britton.   Britton was driving an unmarked car and working burglary surveillance at

approximately two thirty in the morning when the vehicle driven by Renicker cut in front of
Britton and almost hit his car. Renicker turned on tail-light flashers, and Britton noticed a

firefighter emblem on Renicker’s license plate. Britton followed Renicker on city streets and

observed him accelerate to approximately seventy miles per hour and then—after cutting in front

of Britton again—slow almost to a stop, flick a lit cigarette so that it bounced off the hood of

Britton’s car, and drive off. (Britton testified he thought this conduct was “strange” and “very

bad behavior” given that Renicker was a firefighter and the area was experiencing a drought.)

Following the cigarette incident, Britton pulled up alongside Renicker, and Renicker stopped his

vehicle in the road. He looked over at Britton, yelled “I am a f______ fireman,” flipped Britton

off, and took off again. Renicker then made a u-turn and stopped where another officer—whom

Britton had called for back-up—was parked with his car’s lights on; Renicker told the officer he

was being followed.     The second officer performed field sobriety tests, and Renicker was

arrested.

       Renicker contends he received ineffective assistance of counsel at trial because his

attorney did not object to Britton’s characterization of Renicker’s behavior with the cigarette as

“strange” and “very bad behavior.” Renicker argues that testimony amounted to inadmissible

character evidence. He also complains that his counsel did not move to suppress, or at least

object to, the evidence of Renicker’s offensive behavior toward Britton, which he contends was

irrelevant or, if not, was unfairly prejudicial when compared to any relevance it had to the

charged conduct. Finally, Renicker also complains that his attorney failed to present a case

during the punishment phase, stating only:

       This is the defendant’s first DWI. There is no other allegation that he has ever
       been arrested before. We would ask for a $300 fine, six months’ probation, 24
       hours community service and standard conditions.

       Thank you, Your Honor.




                                               –2–
       We examine ineffective assistance of counsel claims under the standard set out in

Strickland v. Washington, 466 U.S. 668 (1984) and adopted by Texas in Hernandez v. State, 726

S.W.2d 53, 56–57 (Tex. Crim. App. 1986). Renicker’s burden is to show by a preponderance of

the evidence that (a) trial counsel’s performance was deficient in that it fell below the prevailing

professional norms, and (b) but for the deficiency, there is a reasonable probability the result of

the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.

Crim. App. 1999). We examine the totality of counsel’s representation to determine whether

appellant received effective assistance, but we do not judge counsel’s strategic decisions in

hindsight; rather, we strongly presume counsel’s competence.             Id.   Any allegation of

ineffectiveness must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness. Id.

       In this case, Renicker filed a motion for new trial alleging, among a number of grounds,

that he received ineffective assistance because his attorney failed to file a motion to suppress.

The motion contained no argument on the point, and there is no record of a hearing at which

Renicker’s trial counsel was afforded the opportunity to explain his actions or trial strategy.

Therefore, as was the case in Thompson, our record provides no discussion of trial counsel’s

purported errors. It contains no discernible explanation of the motivation behind his decision not

to file a motion to suppress, his decision not to object to any particular evidence, or his strategy

in presenting the punishment phase of the trial. Because the record is silent regarding any

explanation for counsel’s actions, appellant has failed to meet his burden to overcome the strong

presumption of reasonable assistance. See Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim.

App. 2003) (“The record in this case is insufficient to support the conclusion [that appellant

received ineffective assistance of counsel] because appellant did not develop a record in the trial

court for the purpose of establishing this claim.”); Jackson v. State, 877 S.W.2d 768, 771 (Tex.

                                                –3–
Crim. App. 1994) (appellate court is not required to indulge in speculation concerning counsel’s

decision-making processes or to imagine reasons why counsel acted or failed to act in particular

manner). 1

           On the record before us, we cannot conclude Renicker has established that his trial

counsel’s performance fell below an objective standard of reasonableness. Thus, he has failed to

satisfy the first prong of Strickland and has not shown his trial counsel’s assistance was

ineffective. We overrule his single issue.

           We affirm the trial court’s judgment.




                                                                             /David Lewis/
                                                                             DAVID LEWIS
                                                                             JUSTICE

Do Not Publish
TEX. R. APP. P. 47

120832F.U05




     1
         Because the reasonableness of trial counsel’s choices often involves facts that do not appear in the appellate record, an application for
writ of habeas corpus is often the more appropriate vehicle to raise ineffective assistance of counsel claims. See Mitchell v. State, 68 S.W.3d 640,
642 (Tex. Crim. App. 2002).



                                                                       –4–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

REID CARLTON RENICKER, Appellant                      On Appeal from the County Court at Law
                                                      No. 1, Collin County, Texas
No. 05-12-00832-CR         V.                         Trial Court Cause No. 001-86948-2011.
                                                      Opinion delivered by Justice Lewis.
THE STATE OF TEXAS, Appellee                          Justices FitzGerald and Francis participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 30th day of July, 2013.




                                                      /David Lewis/
                                                      DAVID LEWIS
                                                      JUSTICE




                                                –5–
