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Jose Isabel Estrada v. State ( 2014 )


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  •                                   IN THE
TENTH COURT OF APPEALS
No. 10-13-00370-CR
JOSE ISABEL ESTRADA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court No. 12-03460-CRF-361
MEMORANDUM OPINION
Jose Isabel Estrada was convicted of aggravated sexual assault of a child and
sentenced to 30 years in prison. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B) (West
Supp. 2013). Because Estrada did not meet his burden to establish that his trial counsel
was ineffective, the trial court’s judgment is affirmed.
In one issue, Estrada argues that his trial counsel was ineffective because of the
cumulative effect of counsel’s failure to object to what Estrada contends was 1) victim
impact testimony at the guilt/innocence phase, 2) hearsay, and 3) opinion testimony
regarding the complainant’s truthfulness.
To prevail on a claim of ineffective assistance of counsel, an appellant must meet
the two-pronged test established by the U.S. Supreme Court in Strickland that (1)
counsel's representation fell below an objective standard of reasonableness, and (2) the
deficient performance prejudiced the defense. Strickland v. Washington,
    466 U.S. 668
    ,
687,
    104 S. Ct. 2052
    ,
    80 L. Ed. 2d 674 
    (1984); Lopez v. State,
    343 S.W.3d 137
    , 142 (Tex.
Crim. App. 2011). Unless appellant can prove both prongs, an appellate court must not
find counsel's representation to be ineffective.
    Lopez, 343 S.W.3d at 142
    . In order to
satisfy the first prong, appellant must prove, by a preponderance of the evidence, that
trial counsel's performance fell below an objective standard of reasonableness under the
prevailing professional norms.
    Id. To prove 
    prejudice, appellant must show that there
is a reasonable probability, or a probability sufficient to undermine confidence in the
outcome, that the result of the proceeding would have been different.
    Id. An appellate 
    court must make a "strong presumption that counsel's performance
fell within the wide range of reasonably professional assistance."
    Id. (quoting Robertson 
    v. State,
    187 S.W.3d 475
    , 483 (Tex. Crim. App. 2006)). Claims of ineffective assistance of
counsel are generally not successful on direct appeal and are more appropriately urged
in a hearing on an application for a writ of habeas corpus.
    Id. at 143 
    (citing Bone v. State,
    77 S.W.3d 828
    , 833 n. 13 (Tex. Crim. App. 2002)). On direct appeal, the record is usually
Estrada v. State                                                                       Page 2
inadequately developed and "cannot adequately reflect the failings of trial counsel" for
an appellate court "to fairly evaluate the merits of such a serious allegation."
    Id. (quoting Bone, 
    77 S.W.3d at 833 (quoting Thompson v. State,
    9 S.W.3d 808
    , 813-814)).
Here, trial counsel objected to some of the complained of testimony but not for
the reasons stated by Estrada on appeal. The record is silent as to why counsel did not
make the recommended objections or did not make an objection at all. Thus, Estrada
has failed to meet his burden under the first prong of Strickland, and his sole issue is
overruled.
The trial court’s judgment is affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed June 19, 2014
Do not publish
[CRPM]
Estrada v. State                                                                       Page 3