Opinion
No. 04-01-00445-CR
Delivered and Filed: June 4, 2003. Do not publish.
Appeal From the 262nd Judicial District Court, Harris County, Texas, Trial Court No. 857993, Honorable Mike Anderson, Judge Presiding. AFFIRMED
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
After Quincy Lewis James pleaded guilty to two charges of aggravated robbery with a deadly weapon, he was sentenced to thirty years in the Texas Department of Criminal Justice — Institutional Division. On appeal, James argues his trial counsel rendered ineffective assistance during the punishment hearing when he failed to object to the testimony of V. Diaz, who testified that, after James and the other men robbed her and her boyfriend at a park, they kidnapped her and two of them raped her at gunpoint. As a result of the rape, Diaz became pregnant and had an abortion. After the abortion, Diaz's parents disowned her. James contends his counsel's failure to object to Diaz's testimony rendered his assistance ineffective, because Diaz's testimony was inadmissible hearsay and unadjudicated extraneous offense evidence. We disagree. Diaz's testimony was in all likelihood admissible. See Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp. 2002) (evidence admissible at noncapital felony punishment hearing includes the circumstances of the offense and evidence of extraneous crimes or bad acts proved beyond a reasonable doubt and for which defendant could be held criminally responsible). "[T]he failure of trial counsel to object to admissible evidence does not constitute ineffective assistance of counsel." McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App. 1992). Moreover, the record is silent as to why counsel did not object to Ms. Diaz' testimony. We may not "reverse a conviction on ineffective assistance of counsel grounds when counsel's actions or omissions may have been based upon tactical decisions, but the record contains no specific explanation for counsel's decisions." Bone v. State, 77 S.W.3d 828, 830 (Tex.Crim.App. 2002); Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002), cert. denied, — U.S. ___, 123 S.Ct. 1901 (2003). The trial court's judgment is affirmed.