ROGELIO EMMANUEL SALGADO, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued October 29, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00690-CR
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ROGELIO EMMANUEL SALGADO, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-27506-M
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MEMORANDUM OPINION
Before Justices Morris, Bridges, and Murphy
Opinion By Justice Morris
        At trial, Rogelio Emmanuel Salgado waived his right to a jury and pleaded guilty to aggravated robbery. He now complains on appeal that he received ineffective assistance of counsel and the trial court abused its discretion in denying his motion for new trial and in sentencing him to five years' imprisonment. We affirm the trial court's judgment. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.
        In appellant's first point of error, he contends he received ineffective assistance of counsel because his attorney failed to call certain witnesses at the punishment hearing. At a hearing on appellant's motion for new trial, his parents, pastor, and bail bondsman testified about their desire to testify in mitigation of appellant's punishment. Appellant's mother indicated that a language barrier may have played some part in appellant's attorney being unaware of the witnesses who were available to testify on appellant's behalf. Appellant's trial counsel was not called as a witness at the hearing, nor was his testimony offered by affidavit.
        It is appellant's burden to show by a preponderance of the evidence that trial counsel's performance was deficient in that it fell below the prevailing professional norms and the deficiency prejudiced the defendant; in other words, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Id. In most cases, a silent record providing no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Further, counsel should ordinarily be given an opportunity to explain his actions before being condemned as incompetent. Rylander, 101 S.W.3d at 111.
        In this case, we cannot tell from the record whether counsel was aware of the witnesses or why he may have decided against offering their testimony at trial. Moreover, at the conclusion of the hearing on appellant's motion for new trial, the trial court ruled that even if the testimony had been offered at the time of appellant's punishment hearing, it would not have changed the outcome of the trial. Appellant has failed to meet his burden of showing ineffective assistance of counsel. We overrule his first point of error.
        In his second point of error, appellant complains the trial court abused its discretion in denying his motion for new trial. A motion for new trial must contain the specific ground for new trial asserted on appeal, and any ground not specifically mentioned in the motion itself is not preserved for appellate review. Lee v. State, 186 S.W.3d 649, 658 (Tex. App.-Dallas 2006, pet. ref'd). The motion for new trial in appellant's case alleged only that the verdict was “contrary to the law and the evidence” at trial. He now complains that “new evidence” had been discovered in the case because his attorney had failed to ascertain the availability of several witnesses who had wanted to testify in his favor at punishment. Because appellant failed to raise this complaint in the motion for new trial, it is waived for appeal. See id. We overrule appellant's second point of error.
        Appellant complains in his third point of error that the trial court abused its discretion in sentencing him to jail time rather than probation. Appellant waived this complaint by failing to object to the sentence either at the time it was imposed or in his motion for new trial. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.). Even constitutional rights may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996). Because appellant has not preserved his complaint for our review, we overrule his third point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47 080690F.U05