Opinion
No. 05-03-01577-CR
Opinion Filed October 8, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-80543-02. Affirm.
Before Justices WRIGHT, RICHTER, and MAZZANT.
OPINION
Ricardo Loera appeals his convictions for two counts of aggravated sexual assault of a child and one count of indecency with a child. After the jury found appellant guilty, it assessed punishment at life confinement in each of the aggravated sexual assault cases, and at 20 years' confinement and a $10,000 fine in the indecency with a child case. In two related issues, appellant contends we must reverse his convictions because (1) the State introduced evidence of an extraneous offense without giving notice to appellant; and (2) he did not receive the effective assistance of counsel at trial. We overrule appellant's issues and affirm the trial court's judgments. In his first issue, appellant contends he was not provided notice that the State intended to present evidence of certain extraneous offenses. Specifically, appellant complains of L.A.L.'s mother's testimony that she began dating appellant when she was fifteen-years-old and became pregnant with L.A.L when she was sixteen-years-old. Appellant was "in his thirties" at the time. He also complains of L.A.L.'s mother's testimony regarding appellant's drug use. However, appellant did not object to the complained-of evidence during trial. Thus, he has failed to preserve error, if any, for our review. See Thomas v. State, 126 S.W.3d 138, 150 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Appellant next contends that his trial counsel was ineffective by failing to object to the extraneous offense evidence. To prevail on an ineffective assistance of counsel claim, an appellant has the burden to show by a preponderance of the evidence that (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (2) the deficiency prejudiced the appellant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Crim.App. 2001) (citing Strickland v. Washington, 466 U.S. 688 (1980)). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). The court of criminal appeals has made clear that, in most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813-14. Further, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional and incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. An application for writ of habeas corpus is the more appropriate vehicle to raise ineffective assistance of counsel claims. Rylander, 101 S.W.3d at 110. Here, appellant did not file a motion for new trial on ineffective assistance of counsel grounds. Thus, the record provides no explanation of the motivation behind counsel's decisions at trial. Because the record is silent regarding any explanation for counsel's failure to object to the complained-of evidence, we cannot conclude appellant has met his burden to overcome the strong presumption of reasonable assistance. See Rylander, 101 S.W.3d at 110; Mallett, 65 S.W.3d at 68; Thompson, 9 S.W.3d at 813-14. Moreover, after reviewing the record, we cannot conclude appellant has met his burden to show that but for counsel's actions, the result of the proceeding would have been different. T.K.K. testified that when she was eleven- or twelve-years old, appellant would call her and V.P, her twelve-year old friend, into the bedroom and force the girls to have intercourse with him. According to T.K.K., this happened several times. T.K.K. also remembered waking up and finding appellant with his penis in her vagina, and on another occasion, with his penis in her mouth. T.C.K., T.K.K.'s younger sister, testified that appellant put his "private" inside her "private" while she was on a mattress in the living room of appellant's house. She also testified that he put two fingers into her private. L.A.L., appellant's daughter, was six-years-old at the time she testified. She explained that when she was younger, she would visit appellant on the weekends. While she was at his house, he touched inside her "privacy" with his finger. According to L.A.L., appellant did that several times. Michelle Hiza, an investigator with Child Protective Services, testified that after interviewing T.K.K., T.C.K., V.P., and L.A.L, she confronted appellant about the allegations of sexual abuse. Appellant told Hiza "he probably did it, but he didn't mean to hurt them." Hiza understood appellant to be referring to T.K.K. and T.C.K. Additional punishment evidence showed appellant had a history of marijuana, cocaine, and alcohol use, with multiple convictions for driving while intoxicated. With this evidence in mind, we cannot conclude that if counsel had objected to the complained-of evidence, there is a reasonable probability the results of the proceeding would have been different. See Strickland, 466 U.S. at 687-88; Thompson, 9 S.W.3d at 813. We overrule appellant's second issue. Accordingly, we affirm the trial court's judgments.