Jose Angel Martinez v. The State of Texas--Appeal from 385th District Court of Midland County

Opinion filed July 26, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-06-00051-CR

__________

JOSE ANGEL MARTINEZ, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 385th District Court

Midland County, Texas

Trial Court Cause No. CR30512

  O P I N I O N

Jose Angel Martinez appeals his conviction for the offense of aggravated sexual assault of a child, following his plea of guilty to a jury. The jury assessed his punishment at eight years confinement in the Texas Department of Criminal Justice, Institutional Division. He contends in a single point on appeal that his attorney at trial rendered ineffective assistance of counsel. We affirm.

Martinez contends that his counsel was ineffective for failing to object to what he contends is hearsay evidence of extraneous offenses contained within a videotaped interview that was presented at the punishment hearing following his plea of guilty. In order to show that he did not receive effective assistance of counsel at trial, Martinez must show that his counsel=s performance was deficient because it fell below the objective standard of professional norms. Wiggins v. Smith, 539 U.S. 510, 520 (2003); Strickland v. Washington,466 U.S. 668, 690 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In addition, he must show that this deficient performance prejudiced his defense. Wiggins, 539 U.S. at 520; Strickland, 466 U.S. at 690; Andrews, 159 S.W.3d at 101; Bone, 77 S.W.3d at 833. Our review of defense counsel=s representation is highly deferential and presumes that counsel=s actions fell within the wide range of reasonable and professional assistance, and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Bone, 77 S.W.3d at 833; Stafford v. State, 813 S.W.2d 503, 508-09 (Tex. Crim. App. 1991). Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Bone, 77 S.W.3d at 833. In the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel. Id. In the case at bar, the record does not reflect counsel=s reason for not objecting to the evidence in question. Consequently, we are unable to find that counsel=s actions did not fall within the wide range of reasonable and professional assistance. We overrule Martinez=s sole point on appeal. The judgment is affirmed.

PER CURIAM

July 26, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: McCall, J.,

Strange, J., and Hill, J.[1]

[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.