I agree with the majority that the Court of Appeals erred in reversing the appellant's conviction on the basis of ineffective assistance of counsel, but I disagree with how it reaches this conclusion. I would conclude that the evidence presented during the hearing on the appellant's motion for new trial was sufficient to support the first prong of the Strickland test for ineffective assistance of counsel but insufficient to support the second prong. As a result, I concur in the judgment only.

In Strickland v. Washington, the Supreme Court articulated a two-prong test to be used when analyzing a claim of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 694 (1984). To have his conviction reversed on the grounds of ineffective assistance of counsel, an appellant has the burden of proving, by a preponderance of the evidence, that (1) the attorney's representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the appellant. Id. at 687. Unless the appellant makes both showings, it cannot be said that her conviction is rendered unreliable by a breakdown in the adversarial process. Ibid. In Hernandez v. State, this Court adopted the Strickland two-prong test for criminal cases in Texas. Hernandez v. State,726 S.W.2d 53 (Tex. Crim. App. 1986).

Our review of counsel's performance must be highly deferential. Strickland, 466 U.S. at 690. There is a strong presumption that the attorney's conduct falls within a wide range of reasonable professional assistance, and the defendant must overcome the presumption Ibid. We determine the reasonableness of counsel's challenged conduct in context, and view it as of the time of counsel's conduct. Ibid.

We have said that we commonly assume a strategic motive if any can be imagined; and find the attorney's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (internal citations omitted)). The policy behind this course is that "[i]ntensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client." Strickland, 466 U.S. at 690. This standard balances the protection of these important policy interests with the protection of each defendant's fundamental Sixth Amendment rights.

But when no reasonable trial strategy could justify the attorney's conduct, his performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel's subjective reasons for acting as he did. Strickland, 466 U.S. at 690.

The second prong of the Strickland test requires that the appellant show that his attorney's deficient performance prejudiced the defense. As the Supreme Court said in Strickland, "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. 694.

In this case, the majority relies on the appellant's acquiescence, at the close of the State's case, to rest without presenting witnesses. The trial court asked the appellant directly if he wanted to rest behind the State's case. The trial court gave the appellant and his trial attorneys a recess in the proceedings to discuss the options. When the proceedings were reconvened, the appellant said that he agreed with his attorneys that they should rest without presenting witnesses. But during the hearing on the motion for new trial, the appellant testified that his trial attorneys never mentioned the option of seeking a continuance to secure the presence of the witnesses. And he testified that had he known of this option, he would have asked his attorneys to seek the continuance.

Even assuming the appellant's attorneys discussed the option of seeking a continuance, the trial attorney's performance was deficient under Strickland. The appellant's trial attorneys knew more than a month before trial about the appellant's alibi witnesses. The appellant testified that neither his trial attorneys nor the investigator asked him for any assistance in finding his alibi witnesses until two or three days before trial. This testimony was not refuted during the hearing. The appellant's trial attorneys did not seek to compel the alibi witnesses' presence at trial by subpoena until two days before trial. Because the appellant's attorneys' failed to act before the trial, the appellant was put in a position in which he had to decide whether to seek a continuance during the trial. There is no reasonable trial strategy in waiting until the eve of trial to serve subpoenas on alibi witnesses.

Moreover, the trial court made no findings on this prong of the Strickland test. The trial court gave its findings verbally when it ruled on the appellant's motion for new trial.

All right, [the] Court's considered the evidence. The Court heard all the testimony in the guilt-innocence phase and the punishment phase. The Court heard the testimony, sworn judicial confession of the co-defendant at the time of his plea, who was subpoenaed and brought back for the trial but not called by either side, if I recall. The Court listened to what the witnesses said, including the contradictions in the time, and with the evidence that's clearly and undisputably before the Court, even through your client's statement at the time of trial with what happened at the Just For Feet store, which totally, in the Court's opinion, destroyed the credibility-or accuracy, if not credibility, of for-certain time schedule of the alibi witnesses who did testify gave, and it's this Court's opinion that not only have you not met your burden, but to have called alibi witnesses in the face of an extraneous of the character and evidence available that was reserved for punishment might have been in and of itself malpractice, unless the alibi case was just stellar.

So I don't find that the burden necessary for ineffective assistance of counsel on changing the outcome of the trial has been met as I think I'm required to find for this Motion for New Trial as I might be required to find for a writ. So without making specific factual or legal conclusions, your Motion for New Trial is overruled, and you have your record for appeal.

The trial court's comments before ruling indicate that he found the alibi witnesses to be incredible in light of all the other evidence he heard. There is no indication that the trial attorneys or their investigator found Woods to be incredible before trial. This was not the reason given for delaying the pursuit of the subpoenas. Regardless, the alibi witnesses's lack of credibility goes to the prejudice prong of the Strickland test and not to the deficient performance prong. I would conclude that the appellant met the first prong of Strickland.

The record supports the trial court's finding that the appellant did not meet the prejudice prong of Strickland, however. The testimony heard during the trial and during the hearing on the motion indicates that there were serious credibility problems with both the appellant and his alibi witnesses. As a result, the appellant did not show that there is a reasonable probability that, in the absence of his trial attorney's errors, the trial result would have been different. I would conclude that the trial court did not abuse its discretion in overruling the appellant's motion for new trial and that the Court of Appeals erred in reversing the appellant's conviction on that basis.

I concur in the judgment.

Filed: January 28, 2004.

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