Opinion
No. 04-06-00457-CR
Delivered and Filed: September 5, 2007. DO NOT PUBLISH.
Appeal from the 227th Judicial District Court, Bexar County, Texas, Trial Court No. 2005-CR-5886, Honorable Philip A. Kazen, Jr., Judge Presiding.
Sitting: CATHERINE STONE, Justice KAREN ANGELINI, Justice REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
A jury convicted John Martinez of aggravated robbery with a deadly weapon and the trial court sentenced him to 30 years imprisonment and fined him $5,000. In a single appellate issue, Martinez argues he received ineffective assistance of counsel. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4. We affirm the trial court's judgment. To prevail on an ineffective assistance of counsel claim, the defendant must demonstrate by a preponderance of the evidence that: (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). A claim of ineffective assistance of counsel must be "firmly founded in the record" and "the record must affirmatively demonstrate" the meritorious nature of the claim. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). Counsel's conduct is reviewed with great deference and without "the deleterious effects of hindsight." Thompson, 9 S.W.3d at 813. Direct appeal is usually an inadequate vehicle for raising an ineffective assistance of counsel claim because the record is generally undeveloped, providing no explanation for counsel's actions. Goodspeed, 187 S.W.3d at 392. "[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003). "Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Goodspeed, 187 S.W.3d at 392. Martinez's appellate brief lists a multitude of acts and omissions by defense counsel that Martinez believes show counsel's representation was deficient. Martinez alleges counsel was deficient by: (1) failing to object to inadmissible evidence; (2) failing to object to improper impeachment by the prosecution; (3) failing to object to improper questioning by the prosecution; (4) failing to obtain rulings on pretrial motions; (5) allowing the prosecution to refer to the knife used during the commission of the underlying offense as a "gutting knife"; and (6) opening the door to the introduction of otherwise inadmissible evidence. Although Martinez filed a motion for new trial, he did not allege in that motion that his counsel was ineffective and did not otherwise develop a record explaining counsel's conduct during trial. This court will not speculate as to what counsel's trial strategy or reasons might have been with regard to the alleged errors. Moreover, we cannot say that the acts and omissions of counsel in this case are so outrageous that no competent attorney would have engaged in them. See Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App. 1984) (holding failure to object to certain procedural errors or improper evidence does not necessarily constitute ineffective assistance); Johnson v. State, 137 S.W.3d 777, 779 (Tex.App.-Waco 2004, pet. ref'd) (concluding opening of the door to the introduction of inadmissible evidence did not constitute ineffective assistance because record was silent with regard to the reasons for counsel's conduct); Mares v. State, 52 S.W.3d 886, 891 (Tex.App.-San Antonio 2001, pet. ref'd) (concluding failure to obtain rulings on pretrial motions was not a per se indication of ineffective assistance of counsel); Greene v. State, 928 S.W.2d 119, 123 (Tex.App.-San Antonio 1996, no pet.) (stating "the failure to object to inadmissible evidence, even extraneous offense evidence, does not necessarily constitute ineffective assistance."); De Los Santos v. State, 918 S.W.2d 565, 572-73 (Tex.App.-San Antonio 1996, no pet.) (recognizing the failure to object to improper impeachment may be a strategic choice); see generally Barfield v. State, No. 13-03-151-CR, 2004 WL 3403151, *2-3, *5-6 (Tex.App.-Corpus Christi 2004, no pet.) (mem. op.) (concluding defendant could not overcome the presumption of reasonable assistance of counsel because record was silent as to defense counsel's reasons for failing to object to the prosecutor's use of the term "rape" for "aggravated sexual assault to a child"). Because Martinez cannot overcome the presumption of effective assistance of counsel, we overrule his appellate complaint. The judgment of the trial court is affirmed.