David Garcia a/k/a "Porky" Garcia v. The State of Texas--Appeal from 81st Judicial District Court of Karnes County

MEMORANDUM OPINION
No. 04-03-00106-CR
David GARCIA,
Appellant
v.
The STATE of Texas,
Appellee
From the 81st Judicial District Court, Karnes County, Texas
Trial Court No. 02-06-0057-CRK
Honorable Stella Saxon, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Chief Justice (concurring in judgment only)

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: June 9, 2004

AFFIRMED

Appellant David Garcia was charged by indictment with the felony offense of aggravated assault with a deadly weapon. He pled not guilty to the charge. Following a jury trial, Garcia was found guilty and sentenced to fifty years' imprisonment and a $5000 fine. He now appeals his conviction in three issues.

Because the issues in this appeal involve the application of well-settled principles of law, we affirm Garcia's conviction in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

All three of Garcia's issues relate to ineffective assistance of counsel. Garcia claims he was denied his right to effective assistance of counsel under both the United States and Texas Constitutions. U.S. Const. amend. VI, XIV; Tex. Const. art.1, 10. Specifically, he contends his counsel was ineffective at the guilt/innocence stage of trial because she: (1) failed to object to the trial court's charge which did not include the lesser included offense of assault or the defense of self-defense; (2) failed to secure a ruling from the trial court on a motion in limine regarding the admissibility of prior convictions and bad acts; (3) allowed the admission of evidence regarding prior convictions; (4) failed to object to evidence regarding prior drug use; (5) and conducted a "merely" cursory voir dire, demonstrating a "lack of preparedness for trial." In addition, Garcia complains that his counsel was ineffective at the punishment phase of trial because she failed to serve a proper request for notice pursuant Article 37.07 3(g) of the Texas Code of Criminal Procedure seeking notice of extraneous matters to be introduced by the State.

In determining whether a criminal defendant has been denied effective assistance of counsel, this court follows the standard iterated in Strickland v. Washington, 466 U.S. 687, 688 (1984) and adopted in Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988). To reverse a criminal defendant's conviction because of ineffective assistance of counsel, the defendant must demonstrate 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, 466 U.S. at 687; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Thompson, 9 S.W.3d at 812. 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).

In the case at hand, the record is silent as to the reasons Garcia's trial counsel acted as she did. Because the record does not provide an explanation for counsel's actions, we conclude Garcia has failed to overcome the strong presumption of reasonable assistance. Under the Strickland standard, Garcia has failed to demonstrate that his trial counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. Even if Garcia had met this first prong of the Strickland test, he failed to demonstrate that but for the alleged deficiencies in counsel's performance the outcome of his trial would have differed. Id. We overrule Garcia's three issues and affirm the judgment of the trial court.

Paul W. Green, Justice

Do Not Publish