NUMBER 13-09-00473-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ____________________________________________________________ ALBERT FOLEY, JR., Appellant, v. THE STATE OF TEXAS, Appellee. ____________________________________________________________ On appeal from the 329th District Court of Wharton County, Texas. ____________________________________________________________ CONCURRING MEMORANDUM OPINION Before Justices Yañez, Garza, and Benavides Concurring Memorandum Opinion by Justice Yañez

Although I agree with the majority=s disposition of appellant=s complaint of ineffective assistance of counsel, I write separately to express my view regarding one of his complaints. Accordingly, I respectfully concur with the majority=s disposition.

By a sub-issue, appellant complains that his trial counsel rendered ineffective assistance by, among other omissions, only visiting him once in the jail before trial.

Appellant=s trial counsel, Richard L. Manske, submitted an affidavit in which he states, in relevant part, that he Amet with [his] client at least once in the jail and several times in court when [appellant] made various appearances.@ Although the majority falls short of endorsing such a practice, it declines to find that a trial counsel=s failure to meet with a client more than onceCnot counting during court appearancesCconstitutes performance so deficient that it falls below an objective standard of reasonableness.1 I disagree. Conferring with a client immediately prior to, or during, a court appearance cannot provide the privacy and confidential circumstances necessary to develop an effective strategy. I would therefore not presume that counsel=s failure to meet with appellant more than onceCother than at court appearancesCfell within the wide range of reasonable professional assistance.2 However, I agree with the majority that even assuming, as I do, that counsel=s conduct fell below the objective standard of reasonableness, appellant failed to establish that a different result would have occurred had his counsel acted differently.

Accordingly, I would overrule his issue.

LINDA REYNA YAÑEZ, Justice Publish.

TEX. R. APP. P. 47.2(b).

Concurring Memorandum Opinion delivered and filed the 21st day of December, 2010.

See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

See id. at 813.

See id. at 812.