Ray Von Burger, Jr. v. State ( 2006 )

                              NUMBERS 13-05-239-CR

13-05-240-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG 

RAY VON BURGER, JR.,                                                                Appellant,

v.

THE STATE OF TEXAS,                                                                 Appellee.

On appeal from the 232nd District Court of Harris County, Texas.

MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Rodriguez and Garza

                            Memorandum Opinion by Justice Garza

Appellant, Ray Von Burger, Jr., was convicted in two separate causes of aggravated sexual assault of a child under the age of 14 and was sentenced to life imprisonment for both charges.  See Tex. Pen. Code Ann. ' 22.021 (Vernon Supp. 2004-05).  In a single issue, appellant argues that his trial counsel was ineffective because he failed to object to testimony from two outcry witnesses.  Because appellant has not shown that counsel's representation fell below an objective standard of reasonableness, we affirm the conviction.

By his sole issue on appeal, appellant claims that his trial counsel was ineffective for failing to object to the testimony of the State=s outcry witnesses because they were not the first persons the minor victims told about the offense.^[1]

This Court uses the two‑pronged Strickland test to determine whether representation was so inadequate that it violated a defendant's Sixth Amendment right to counsel. See Strickland v. Washington, 466 U.S. 668, 684 (1984) (recognizing the Sixth Amendment right to counsel); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Alfano v. State, 780 S.W.2d 494, 495 (Tex. App.BCorpus Christi 1989, no pet.).  To establish ineffective assistance of counsel, appellant must show (1) his attorney's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for his attorney's errors, the result of the proceeding would have been different.  Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55.  Whether this test has been met is to be judged on appeal by the totality of the representation, not by isolated acts or omissions.  Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App. 1995).

The burden is on appellant to prove ineffective assistance of counsel by a preponderance of the evidence.  Munoz v. State, 24 S.W.3d 427, 434 (Tex. App.BCorpus Christi 2000, no pet.).  Our review of counsel=s representation is highly deferential; appellant must overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.  See Strickland, 466 U.S. at 689; Munoz, 24 S.W.3d at 434.  Also, the acts or omissions that form the basis of appellant's claim of ineffective assistance must be evidenced by the record.  See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).

            As an initial matter, we note that the failure to object to inadmissible evidence does not necessarily constitute ineffective assistance of counsel.  See McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992); Castoreno v. State, 932 S.W.2d 597, 603 (Tex. App.BSan Antonio 1996, pet. ref'd).  Moreover, isolated failures to object generally do not constitute error in light of the sufficiency of the overall representation. Johnson v. State, 691 S.W.2d 619, 627 (Tex. Crim. App. 1984).

Given the standard of review for effectiveness of counsel, appellant has not met his burden to prove that trial counsel's representation fell below an objective standard of reasonableness.  Contrary to appellant=s assertion, the record does not address counsel's rationale regarding the complained‑of actions, nor does it affirmatively demonstrate the alleged ineffectiveness. Thus, the record is insufficient to rebut Strickland 's presumption that the challenged actions of trial counsel were the result of "sound trial strategy."  See Strickland, 466 U.S. at 689. Moreover, given the record evidence, which includes direct testimony from the victims, appellant has failed to show there is a reasonable probability that but for counsel's allegedly deficient performance, the result of the proceeding would have been different. Id.  Under these facts, we cannot conclude that trial counsel offered ineffective assistance of counsel.  Appellant's issue is overruled.

Accordingly, we affirm the judgments of the trial court.

DORI CONTRERAS GARZA,

Justice                 

Do not publish.                                             

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 9th day of February, 2006.

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^[1] Appellant's issue is premised on article 38.072 of the code of criminal procedure, which provides an exception to the hearsay rule allowing testimony regarding a child abuse victim's initial outcry statement made to the first person eighteen years of age or older, other than the defendant, to whom the child made a statement about the offense.  See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005).