Raul "Rudy" Ydrogo, Jr. v. State ( 2006 )

                             NUMBER 13-04-00271-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

RAUL YDROGO, JR.,                                                                       Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

    On appeal from the 105th District Court of Kleberg County, Texas.

                      MEMORANDUM OPINION^[1]

               Before Justices Hinojosa, Rodriguez, and Garza

                         Memorandum Opinion by Justice Hinojosa

Appellant, Raul Ydrogo, Jr., pleaded guilty to the offense of aggravated assault.  The trial court deferred the adjudication of guilt and placed appellant on community supervision for a term of five years.  In 2002, in response to the State=s motion to revoke appellant=s community supervision, the trial court ordered Ydrogo to attend a Substance Abuse Felony Punishment Facility.  In 2004, the State filed a second motion to revoke.  After appellant pleaded Atrue@ to the allegations contained in the motion, the trial court found that appellant had violated the terms of his community supervision, adjudicated him guilty of the offense of aggravated assault, and assessed his punishment at twenty years= imprisonment. In three issues, appellant contends he received ineffective assistance of counsel at the hearing on the motion to revoke his community supervision.  We affirm.

Appellant contends his counsel was ineffective because (1) he did not present any evidence in defense of appellant, (2) he advised appellant to plead Atrue@ to the violations in the motion to revoke community supervision, and (3) he failed to present any evidence at the punishment phase of the hearing.

We adhere to the United States Supreme Court=s two‑pronged test to determine whether counsel=s representation was so inadequate that it violated appellant=s Sixth Amendment right to counsel. Strickland v. Washington, 466 U.S. 668, 687‑88 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986); Munoz v. State, 24 S.W.3d 427, 433 (Tex. App.BCorpus Christi 2000, no pet.).  Allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).  First, the appellant must show that counsel=s performance was deficient; in other words, that counsel=s assistance fell below an objective standard of reasonableness.  Hernandez, 726 S.W.2d at 55. The deficiency must be of the extent that counsel failed to function as counsel.  Yates v. State, 917 S.W.2d 915, 920 (Tex. App.BCorpus Christi 1996, pet. ref=d).  Second, the appellant must prove that Athe deficient performance prejudiced the defense@ by Aa reasonable probability that, but for counsel=s errors, the result of the proceeding would have been different.@  Munoz, 24 S.W.3d at 433.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Strickland, 466 U.S. at 693; Hernandez, 726 S.W.2d at 55.  AFailure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.@  Strickland, 466 U.S. at 700.

Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective.  Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). In the absence of evidence of counsel=s reasons for the challenged conduct, we will assume a strategic motivation and will not conclude that the conduct was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it.  Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d at 814; see Aldrich v. State, 104 S.W.3d 890, 896 (Tex. Crim. App. 2003) (AAppellate courts can rarely decide the issue of unreasonable performance because the appellate record rarely speaks to the strategic reasons that counsel may have considered.@).

There is a rebuttable presumption that counsel is better positioned than the appellate court to judge the pragmatism of the particular case and that counsel made all significant decisions in the exercise of reasonable professional judgment.  Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992).  The presumption may be rebutted by evidence of counsel=s reasoning or lack thereof.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The most effective way to demonstrate ineffective assistance of counsel is by presenting evidence at a hearing on a motion for new trial.  See generally McCain v. State, 995 S.W.2d 229, 245 (Tex. App.BHouston [14th Dist.] 1999, pet. denied).

            The record reflects that appellant filed a motion for rehearing of the motion to revoke, but no action was taken on the motion.  Thus, the record contains no evidence demonstrating counsel=s reasoning or lack thereof.  Consequently, appellant=s allegations of ineffectiveness are not firmly founded in the record, and the record does not affirmatively demonstrate the alleged ineffectiveness.  McFarland, 928 S.W.2d at 500. Accordingly, we hold that appellant has not sustained his burden of proving his ineffective assistance claims by a preponderance of the evidence.^[2]  Appellant=s first, second, and third issues are overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish.  See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this the 8th day of June, 2006.

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^[1] Because the issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and facts in this opinion except as necessary to advise the parties of our decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

^[2] This holding does not prevent appellant from raising this claim by an application for post-conviction writ of habeas corpus.  Ex parte Nailor, 149 S.W.3d 125, 130-31 (Tex. Crim. App. 2004); Ex parte Varelas, 45 S.W.3d 627, 629 (Tex. Crim. App. 2001).