RICARDO GARCIA v. THE STATE OF TEXAS--Appeal from 208th District Court of Harris County

NUMBER 13-02-642-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI EDINBURG

RICARDO GARCIA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 208th District Court

of Harris County, Texas.

O P I N I O N

Before Justices Hinojosa, Garza, and Baird //

Opinion by Justice Baird

Appellant was charged by indictment with the offense of aggravated robbery. The indictment alleged a prior felony conviction for the purpose of enhancing the range of punishment. A jury convicted appellant of the charged offense, found the enhancement allegation true, and assessed punishment at thirty-six years confinement in the Texas Department of Criminal Justice--Institutional Division. We affirm the judgment of the trial court.

I. Failure to Charge Jury on Extraneous Offense Evidence.

The first point of error contends the trial judge erred in failing to instruct the jury on the burden of proof required before extraneous offense evidence may be considered at the punishment phase of trial. Such an instruction is required by law. Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1) (Vernon Supp. 2003). Therefore, the trial judge erred in failing to submit, sua sponte, a reasonable-doubt instruction regarding the extraneous offense evidence. Allen v. State, 47 S.W.3d 47, 50 (Tex. Crim. App. 2001)("Thus, the trial court is required, when punishment phase evidence of extraneous offenses or bad acts evidence is admitted, to sua sponte instruct the jury on the reasonable-doubt standard of proof concerning the extraneous offenses and bad acts."). However, because trial counsel failed to object to the omission of the instruction in the jury charge, the degree of harm must be egregious before reversal is required. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh g). // Moreover, we evaluate the harm stemming from the omission of the instruction in the jury charge, not the extraneous offense evidence itself. Ellison, 86 S.W.3d at 227.

The Almanza Court explained that errors which result in egregious harm are those which affect "the very basis of the case," deprive the defendant of a "valuable right," or "vitally affect a defensive theory." Almanza, 686 S.W.2d at 172. In Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996), the court recognized the following four factors for consideration when conducting an Almanza harm analysis: 1) the charge itself; 2) the state of the evidence including contested issues and the weight of the probative evidence; 3) arguments of counsel; and, 4) any other relevant information revealed by the record of the trial as a whole. Hutch, 922 S.W.2d at 171. We will consider the factors seriatim.

The charge itself is a standard punishment charge. However, it does not contain the following language: You are further instructed that in fixing the defendant s punishment . . . you may take into consideration all the facts shown by the evidence admitted before you in the full trial of this case . . . . This language permits the jury to consider the extraneous offense evidence admitted at the guilt phase of trial. The charge submitted at that phase included the following instruction:

You are further instructed that if there is any evidence before you in this case regarding the defendant s committing an alleged offense or offenses other than the offense alleged against him in the indictment in this case, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense or offenses, if any, and even then you may only consider the same in determining the knowledge of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose.

Therefore, to the extent the jury considered the extraneous offenses at the guilt phase, they were convinced beyond a reasonable doubt that the defendant committed those offenses. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (jury presumed to have followed instructions).

We next consider the state of the evidence including contested issues and the weight of the probative evidence. At the time of the commission of the instant error, the jury had convicted appellant of the charged offense. Consequently, the jury had already resolved any contested issues against appellant, and had found the weight of the probative evidence sufficient to establish appellant s guilt beyond a reasonable doubt. At the punishment phase, appellant pled true to the enhancement allegation of theft from person. Additionally, appellant stipulated to convictions for failure to identify to a peace officer and theft.

Counsel for appellant did not mention the extraneous offenses in his closing argument. Instead, counsel attempted to mitigate the punishment due to the fact that appellant was not present when the complainant was shot, and focused on appellant s children. Counsel asked the jury to assess the minimum punishment of fifteen years. Both prosecutors for the State referred to the extraneous offense evidence, but neither asked that the jury punish appellant for that specific conduct. Instead, both argued that this evidence showed appellant s character. The State asked the jury to assess punishment at confinement for life. As noted above, the jury assessed punishment at thirty-six years.

Regarding the fourth factor, we do not discern any other relevant information revealed by the record of the trial as a whole.

As noted earlier, the harm which must be considered is the impact of the omission in the jury charge of a reasonable-doubt instruction, not the extraneous offense evidence itself. Ellison, 86 S.W.3d at 227. When the factors of Hutch are considered in this context, we do not find the error was so egregious as to affect "the very basis of the case," deprive the defendant of a "valuable right," or "vitally affect a defensive theory." Almanza, 686 S.W.2d at 172. Consequently, we hold the failure of the trial court to sua sponte instruct the jury on the burden of proof required before extraneous offense evidence may be considered at the punishment phase of trial did not result in sufficient harm to require reversal. Accordingly, the first point of error is overruled.

II. Ineffective Assistance of Counsel.

The remaining point of error contends appellant was denied the right to effective assistance of counsel. In support of this contention, appellate counsel directs us to three instances where counsel failed to object during the guilt phase of trial: (a) to the jury charge; (b) to inadmissible evidence; and, (c) to improper jury argument. To prevail on a claim of ineffective assistance of counsel, appellant must prove by a preponderance of the evidence (1) that counsel's performance was deficient; and (2) that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). When determining the validity of a claim of ineffective assistance of counsel, judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). Accordingly, there is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Generally, the record on direct appeal is "inadequate to develop an ineffective assistance claim" because "the very ineffectiveness claimed may prevent the record from containing the information necessary to substantiate such a claim." Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997). When the record is silent as to defense counsel's subjective motivations, appellate courts employ the presumption discussed above, and presume that the challenged actions or inactions were sound trial strategy. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). This general rule may be defeated when a motion for new trial is filed, and a hearing is held on the issue of the alleged ineffective assistance of counsel. See Robinson v. State, 16 S.W.3d 808, 810 (Tex. Crim. App. 2000) (discussing post-conviction writ proceeding as preferred method for establishing facts underlying ineffective assistance claim). However, in the instant case no such motion was filed. Therefore, we have nothing before us from which to determine why appellant failed to object in these instances. Consequently, the allegations of ineffectiveness are not firmly founded in the record, and the record does not affirmatively demonstrate the alleged ineffectiveness. McFarland, 928 S.W.2d at 500. Accordingly, we hold appellant has not sustained his burden of proving the ineffective assistance claim by a preponderance of the evidence. // The second point of error is overruled.

The judgment of the trial court is affirmed.

CHARLES BAIRD,

Justice

Do Not Publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 12th day of February, 2004.