Maria E. Rocha v. The State of Texas--Appeal from County Court at Law No 2 of Bexar County

MEMORANDUM OPINION

No. 04-04-00845-CR

Maria ROCHA,

Appellant

v.

The STATE of Texas,

Appellee

From the County Court at Law No. 2, Bexar County, Texas

Trial Court No. 868186

Honorable H. Paul Canales, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: October 19, 2005

AFFIRMED

Maria Rocha appeals her conviction of criminal trespass. In her sole issue on appeal, Rocha contends that she was denied effective assistance of counsel at trial. We affirm the judgment of the trial court.

BACKGROUND

Maria Rocha was charged by information with the misdemeanor offense of criminal trespass for her alleged failure to vacate her children s school premises. Rocha pleaded not guilty to the offense, and a jury trial was held in Bexar County, Texas. After hearing all of the evidence, the jury found Rocha guilty of the offense. The jury assessed punishment at 180 days confinement in Bexar County Jail, but the sentence was suspended and Rocha was placed on probation for a period of two years. This appeal followed.

DISCUSSION

Rocha s only issue on appeal is that she was denied effective assistance of counsel in violation of her rights under the Sixth Amendment to the United States Constitution and Article I, 10 of the Texas Constitution. // See U.S. CONST. amend. VI; TEX. CONST. art. I, 10. Because Rocha has failed to establish ineffective assistance of counsel under the standard required by Strickland v. Washington, we affirm the judgment of the trial court. See Strickland v. Washington,466 U.S. 668, 687 (1984).

To establish ineffective assistance of counsel in a non-capital criminal trial, a defendant must demonstrate by a preponderance of the evidence that: (1) his trial counsel s performance was deficient, and (2) the deficient performance prejudiced him to such a degree as to deprive him of a fair trial. Strickland, 466 U.S. at 687; see also Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (holding that failure of appellant to make either of the required showings of deficient performance and sufficient prejudice defeats the claim of ineffective assistance). To establish deficient performance, the first prong of the Strickland standard, the defendant must show that counsel s performance fell below an objective standard of reasonableness and must rebut the presumption that counsel s trial decisions were based on sound trial strategy. Thompson v. State, 9 S.W.3d 808, 812-14 (Tex. Crim. App. 1999). To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 814 (citation omitted).

Here, the record is silent as to trial counsel s reasons for any acts or omissions in his representation of Rocha at trial. See id. at 813; Rylander, 101 S.W.3d at 110-11 (recognizing that the reviewing court rarely will be provided the opportunity to make such a determination on direct appeal due to the lack of a developed record). In the absence of a developed evidentiary record, counsel s conduct must be presumed to fall within the wide range of reasonable and professional assistance. Thompson, 9 S.W.3d at 815. To otherwise find defendant s trial counsel ineffective would require this court to speculate as to counsel s motivation and reasoning, which we may not do. Thus, without evidence in the record to both establish deficiency and rebut the prevailing presumption, Rocha is unable to satisfy the first prong of Strickland. See id. at 814; Jackson v. State,973 S.W.2d 954, 957 (Tex. Crim. App. 1998). Because the failure of the appellant to satisfy either prong precludes a claim of ineffective assistance, we overrule this issue on appeal.

CONCLUSION

Accordingly, we affirm the judgment of the trial court. This opinion, however, does not preclude Rocha from raising her ineffective assistance claim in an application for post-conviction writ of habeas corpus filed in the trial court. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2004-05); Thompson, 9 S.W.3d at 814-15 (noting this would provide opportunity for a dedicated hearing to consider trial counsel s rationale).

Karen Angelini, Justice

DO NOT PUBLISH