No. 01-02-00320-CR
January 30, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 338th District Court, Harris County, Texas, Trial Court Cause No. 886344.
Panel consists of Chief Justice RADACK and Justices NUCHIA and HANKS.
SAM NUCHIA, Justice.
DeCarlos Montray Garrett, appellant, was charged by indictment with aggravated robbery. Appellant entered a plea of not guilty. The jury found appellant guilty of aggravated robbery and his punishment was assessed at 99 years confinement. Appellant claims his trial counsel was ineffective in three instances: (1) counsel opened the door to evidence of a harmful extraneous offense during the State's case-in-chief, (2) counsel failed to request notice from the State of its intent to introduce extraneous-offense evidence, and (3) counsel failed to request a burden-of-proof instruction regarding extraneous-offense evidence in the jury charge during the punishment phase of trial.
Discussion
Appellant's sole point of error contends that the cumulative effect of trial counsel's errors denied him the effective assistance of counsel. Appellant points to three instances that he believes rise to the level of ineffective assistance of counsel. Standard of Review
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). See Thompson v. State , 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Hernandez v. State , 726 S.W.2d 53, 55 (Tex.Crim.App. 1986); Gamble v. State , 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.). Appellant must show that (1) counsel's performance was so deficient that he was not functioning as acceptable counsel under the sixth amendment and (2) but for the counsel's error, the result of the proceedings would have been different. Strickland , 466 U.S. at 687, 104 S.Ct. at 2064; Thompson , 9 S.W.3d at 812; Gamble , 916 S.W.2d at 93. It is the defendant's burden to prove ineffective assistance of counsel. Strickland , 466 U.S. at 687, 104 S.Ct. at 2064; Gamble , 916 S.W.2d at 93. A defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland , 466 U.S. at 689, 104 S.Ct. at 2065; Thompson , 9 S.W.3d at 813; Gamble , 916 S.W.2d at 93. The record is silent as to why appellant's trial counsel (1) asked the State's witness about the debt he owed to appellant, (2) did not request notice from the State of its intent to introduce extraneous-offense evidence, and (3) did not request a burden-of-proof instruction regarding extraneous offense evidence. See Gamble , 916 S.W.2d at 93. To find that trial counsel was ineffective based on the asserted grounds would call for speculation, which we will not do. See Jackson v. State , 877 S.W.2d 768, 771 (Tex.Crim.App. 1994); Gamble , 916 S.W.2d at 93. Conclusion
We affirm the trial court's judgment.