A jury found Royce Shepherd to be guilty of three counts of burglary of a habitation. After finding Shepherd to be a repeat offender, the jury assessed punishment at confinement in the Texas Department of Criminal Justice, Institutional Division, for 74 years and a $10,000 fine on count one, 77 years of confinement and a $10,000 fine on count two, and 75 years of confinement and $10,000 fine on count three. A motion for new trial was filed and overruled by operation of law without an evidentiary hearing. The sole point of error raised on appeal contends that the appellant received ineffective assistance of counsel at trial. That issue was not raised in the motion for new trial.

To show that his trial counsel was ineffective, applicant must meet the two-pronged test articulated in Strickland v. Washington. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, applicant must demonstrate that counsel's performance was deficient. See id. at 687, 104 S.Ct. 2052. In order to satisfy this prong, applicant must demonstrate that counsel's performance fell below an objective standard of reasonableness, as judged on the facts of a particular case and viewed at the time of counsel's conduct. See id. at 688, 690, 104 S.Ct. 2052. Second, applicant must show that counsel's performance prejudiced his defense at trial. See id. at 692, 104 S.Ct. 2052. "It is not enough for the [applicant] to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693, 104 S.Ct. 2052. Rather, applicant must show there is a reasonable probability that the result of the proceeding would have been different but for the errors made by counsel. See id. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

Texas courts have consistently adhered to the standard set out in Strickland. See generally McFarland v. State, 928 S.W.2d 482 (Tex.Crim. App. 1996). "Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. at 500. This Court recognizes that counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. See id.; see also Strickland, 466 U.S. at 690, 104 S.Ct. 2052.

Ex parte Varelas, 45 S.W.3d 627, 629 (Tex. Crim. App. 2001). ⁽¹⁾

Shepherd argues that counsel failed to request a witness list, failed to file pre-trial discovery motions, failed to file motions in limine, and failed to object to leading questions. Shepherd argues that, due to defense counsel's lack of pre-trial preparation, the State was able to present the jury with evidence of extraneous burglaries and drug use by the defendant and his co-defendants. Of course, there is no evidence in the record revealing what discovery was actually conducted and the extent and nature of counsel's preparation for trial. The appellant has the burden of rebutting the presumption that counsel's actions and decisions were reasonably professional and motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994). Absent evidence in which trial counsel explains why he did what he did, our assessment of counsel's strategy would call for impermissible speculation. Id. From our examination of the trial record, it appears that counsel used the extraneous offense evidence to undermine the credibility of the co-defendants by showing that they were addicts under the influence of cocaine at the time of the offenses, that their drug use adversely affected their recall, that they had repeatedly changed their stories, that they had been debriefed by the prosecutor before trial, and that they had a motive for testifying untruthfully. Shepherd denied participating in the burglaries and drug use, but testified that he was with the female co-defendant for the purpose of prostitution while the male co-defendant stole and sold various items of personal property. Although counsel stated that he did not know who would be called to testify because he had not received a witness list, both co-defendants were in custody at the time and we cannot assume from the stated objection that counsel truly had failed to anticipate that one or both of the co-defendants might testify.

Shepherd fails to overcome the presumption that trial counsel's actions were part of a reasonable, albeit unsuccessful, trial strategy. Because the record does not affirmatively demonstrate that counsel's overall performance was deficient, we do not reach the prejudice prong of the Strickland test. We overrule the issue and affirm the judgment.

AFFIRMED.

PER CURIAM

Submitted on December 18, 2001

Opinion Delivered January 9, 2002

Do Not Publish

Before Walker, C.J., Burgess and Gaultney, JJ.

1.Due to the difficulty inherent in creating an adequate record in a regular appeal, a claim of ineffective assistance of counsel on appeal is cognizable in a subsequent writ of habeas corpus. Thompson v. State, 9 S.W.3d 808, 814-15 (Tex. Crim. App. 1999).