Garza, Oziel Gonzalez v. State ( 2002 )

    In The

Court of Appeals  

For The  

First District of Texas  

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NO. 01-01-01099-CR

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OZIEL GONZALEZ GARZA, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 883681

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O P I N I O NAppellant pled not guilty to possession with intent to deliver more than 400 grams of cocaine. A jury found appellant guilty and assessed punishment at 50 years’ confinement and a $150,000 fine. In twelve points of error, appellant argues that he was denied effective assistance of counsel. We affirm.  

Effective Assistance of Counsel

          In twelve points of error, appellant argues that he was denied effective assistance of counsel. The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). See also, Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Appellant must show both that (1) counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment, and (2) but for counsel’s error, the result of the proceedings would have been different. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gamble, 916 S.W.2d at 93.

          It is the defendant’s burden to prove ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gamble, 916 S.W.2d at 93. A defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2064; Gamble, 916 S.W.2d at 93. A claim of ineffective assistance of counsel must be firmly supported by the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). We will not speculate to find trial counsel ineffective when the record is silent. Alvarez v. State, 79 S.W.3d 679, 681 (Tex. App.—Houston [1st Dist.] 2002 no pet.). When a convicted criminal asserts that his counsel was ineffective, only in rare cases will the record on direct appeal be sufficient for an appellant court to fairly evaluate the claim. Robinson v. State, 16 S.W.3d 808, 812 (Tex. Crim. App. 2000).

          In ten points of error, appellant contends that trial counsel failed to object to testimony that allegedly bolstered the informant’s credibility, to hearsay testimony that divulged appellant’s alleged post-arrest statement, to other hearsay testimony, to a comment in the State’s summation that implicated appellant’s ethnicity, and to the State’s argument that indicated that drug dealers, like appellant, cause crimes and other bad results. In his eleventh and twelfth points of error, appellant contends that he was denied effective assistance under the totality of the circumstances.

          Appellant did not file a motion for new trial. As a result, there is no evidence in the record as to why appellant’s trial counsel did not object to the statements. To find trial counsel ineffective would call for speculation, which we will not do. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1999); Gamble, 916 S.W.2d at 93, see also Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (holding trial counsel not ineffective when record silent as to trial counsel’s reasons for declining to request instruction on concurrent causation).

          We overrule all of appellant’s points of error.Conclusion

          We affirm the judgment of the trial court.

                                                                        Adele Hedges

                                                                        Justice

Panel consists of Justices Hedges, Keyes, and Evans.

Do not publish. Tex. R. App. P. 47.4