David Loran Cardenas v. The State of Texas--Appeal from 128th District Court of Orange County

MEMORANDUM OPINION
No. 04-03-00527-CR
David Loran CARDENAS,
Appellant
v.
The STATE of Texas,
Appellee
From the 128th Judicial District Court, Orange County, Texas
Trial Court No. A-030103-R
Honorable Patrick Clark, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: January 7, 2004

AFFIRMED

David Loran Cardenas challenges his conviction for aggravated robbery. He complains in a single issue that he was denied effective assistance of counsel. We affirm the trial court's judgment. The facts of the case are well known to the parties, thus we do not recount the facts in detail. We issue this opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in this case is well settled. See Tex. R. App. P. 47.4.

To prevail on an ineffective assistance of counsel claim, a defendant must prove by a preponderance of the evidence that: (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). Any allegations of ineffectiveness must be firmly founded in the record, and the defendant must overcome the strong presumption that counsel rendered adequate assistance and that counsel's actions were the result of sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). In most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001);

Thompson, 9 S.W.3d at 813-14.

Here, Cardenas asserts his trial counsel was ineffective by failing to file any pretrial motions and by failing to reurge his motion for a continuance at the conclusion of voir dire. Cardenas did not file a motion for new trial raising a claim of ineffective assistance of counsel; thus, the record provides no explanation of the motivation behind counsel's decisions. Because the record does not provide any explanation for counsel's actions, we must presume trial counsel chose not to file any motions or reurge Cardenas's motion for a continuance as part of his trial strategy. On the record presented, we must conclude that Cardenas has failed to meet his burden under Strickland v. Washington. Cardenas's sole appellate issue is therefore overruled.

The judgment of the trial court is affirmed.

Catherine Stone, Justice

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