Simon A. Chavez v. The State of Texas--Appeal from County Crim Ct No 8 of Tarrant County

IN THE

TENTH COURT OF APPEALS

No. 10-05-00028-CR

Simon A. Chavez,

Appellant

v.

The State of Texas,

Appellee

From the County Criminal Court No. 8

Tarrant County, Texas

Trial Court No. 0911928

MEMORANDUM Opinion

Chavez appeals his misdemeanor conviction for driving while intoxicated. See Tex. Penal Code Ann. 49.04(a) (Vernon 2003). We affirm.

Closing Argument. In Chavez s first issue, he contends that the State improperly stated the burden of proof in closing argument. In order to preserve a complaint of improper jury argument, a party must timely object. Tex. R. App. P. 33.1(a); Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Chavez does not point to an objection in the record. Chavez thus forfeited his complaint. We overrule Chavez s first issue.

Effective Assistance of Counsel. In Chavez s second issue, he contends that counsel failed to render the effective assistance of counsel. See U.S. Const. amend. VI; Wiggins v. Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668 (1984). Chavez argues that counsel failed to object to the State s closing argument. A Strickland claim must be firmly founded in the record and the record must affirmatively demonstrate the meritorious nature of the claim. Goodspeed v. State, No. PD-1882-03, 2005 Tex. Crim. App. LEXIS 520, at *4 (Tex. Crim. App. Apr. 6, 2005) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). If counsel s reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel s decisions and deny relief on an ineffective assistance claim on direct appeal. Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 940 (2004); accord Goodspeed at *4. Counsel s reasons for not objecting do not appear in the record. We overrule Chavez s second issue.

Having overruled Chavez s issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed October 19, 2005

Do not publish

[CR25]