Reynaldo Rocha, Sr. v. State ( 2005 )

MEMORANDUM OPINION No. 04-04-00366-CR Reynaldo ROCHA, Sr., Appellant v. The STATE of Texas, Appellee From the 293rd Judicial District Court, Zavala County, Texas Trial Court No. 03-10-02892-ZCR Honorable Fred Shannon, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: January 5, 2005

AFFIRMED.

A jury found appellant, Reynaldo Rocha, guilty of delivery of a controlled substance. The trial court, in accordance with the jury's assessment, sentenced Rocha to fourteen years confinement. In two issues on appeal, Rocha complains of ineffective assistance of counsel. After reviewing the record, we conclude the record contains insufficient evidence to hold Rocha received ineffective assistance of counsel. Therefore, we affirm the trial court's judgment.

Ineffective Assistance of Counsel

In two issues, Rocha contends he was denied effective assistance of counsel under the Sixth Amendment to the United States Constitution. U.S. Const. amend. VI. Specifically, Rocha contends that his counsel was deficient for failing to object to DPS Special Agent Ricardo Sanchez's testimony that drug smugglers commonly hand over packages in such a way as to avoid imprinting their fingerprints; failing to adequately prepare Rocha's sole witness by not prepping her to avoid giving a broad response that opened the door for introduction of Rocha's prior criminal convictions; and failing to object to the introduction of Rocha's prior criminal convictions.

To reverse a criminal defendant's conviction on ineffective assistance grounds, the defendant must demonstrate by a preponderance of the evidence that: 1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and 2) there is a reasonable probability but for counsel's unprofessional errors, the result of the proceeding would have been different. Rylander v. State, 101 S.W.3d 107, 109-10 (Tex. Crim. App. 2003) (citing Strickland v. Washington, 477 U.S. 668, 691 (1984)). A reasonable probability is one sufficient to undermine confidence in the outcome of the proceeding. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). As a reviewing court, we cannot speculate as to the reasons why trial counsel acted as he did; rather, we must be highly deferential and presume trial counsel's actions fell within the wide range of reasonable and professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Any allegations of ineffectiveness must be firmly founded in the record, and the appellant must prove he was denied a fair trial based on the totality of the representation, not by isolated instances or by only a portion of the trial. Id. at 835 ("Ineffective assistance of counsel claims are not built on retrospective speculation"); McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119 (1997). Generally, the trial record will not suffice to establish an ineffective assistance of counsel claim. Thompson, 9 S.W.3d at 813-14. A silent record usually cannot rebut the presumption that counsel's performance resulted from sound or reasonable trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Rocha did not file a motion for new trial. Because no ineffective assistance claim was advanced, no hearing was conducted to review defense counsel's strategy. We have searched the record and found no explanation of the motivation behind the defense counsel's trial decisions. Since the record is silent as to all of Rocha's complaints, to find Rocha's trial counsel ineffective on the basis of the record before this court would require us to speculate, which we cannot do. Bone, 77 S.W.3d at 830. Because the record is silent regarding any explanation for counsel's actions, we conclude Rocha has failed to overcome the strong presumption that his counsel performed in a reasonably professional manner. See id. at 833; Thompson, 9 S.W.3d at 813-14.

Conclusion

We overrule Rocha's issues on appeal and affirm the trial court's judgment.

Catherine Stone, Justice

DO NOT PUBLISH