Opinion
No. 05-06-00582-CR
Opinion filed April 10, 2007.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F05-53194-LJ .
Before Justices O'Neill, Lang-Miers, and Mazzant.
MEMORANDUM OPINION
Appellant Oscar Armando Savres Mendoza appeals his conviction for aggravated robbery with a deadly weapon. After pleading guilty, the jury assessed punishment at twenty years' confinement. In a single issue, he claims he received ineffective assistance of counsel during punishment. We affirm the trial court's judgment. On May 7, 2005 and May 9, 2005, appellant robbed the same Tex-Mex wireless store in Dallas to obtain money for drugs. The employees called the police on both occasions and filed reports. He returned to the store a third time; however, because the employees began locking the door and only opening it to customers they recognized, he ran away. Upon seeing appellant, the employees again called police and reported the incident. On May 30, 2005, appellant used a knife to rob a convenience store. He took approximately $600 to $700 and the cash register. The police prepared a photo array, and the robbery victims identified appellant. Appellant later confessed to the crimes. After pleading guilty, the jury assessed punishment at twenty years' confinement. In a single issue, appellant contends his defense counsel was ineffective during punishment because he failed to ask the probation supervisor about potential drug treatments he could receive on probation and the court's authority to utilize the Substance Abuse Felony Program. To prevail on an ineffective assistance of counsel claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); see also Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999) (applying same two-step analysis to punishment phase of non-capital proceedings). The record must be sufficiently developed to overcome the strong presumption of reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Generally, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). Likewise, without evidence of counsel's trial strategy, the reviewing court will presume sound trial strategy. Thompson, 9 S.W.3d at 814; see also Rylander, 101 S.W.3d at 111. As the Supreme Court of Texas stated in Andrews v. State, "we commonly assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it." Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005). Further, trial counsel should ordinarily be given an opportunity to explain his actions before being denounced as ineffective. Bone v. State, 77 S.W.3d 828, 836 (Tex. 2002). Here, although appellant filed a motion for new trial, it was nothing more than a form motion arguing against the sufficiency of the evidence. There was no hearing on the motion and no evidence of defense counsel's possible strategies for not asking John Priolo, the probation supervisor, specific questions about potential drug treatments or the Substance Abuse Felony Program. Thus, there is no evidence rebutting the presumption that counsel acted pursuant to sound trial strategy. Without being afforded the opportunity to explain his strategies, we refuse to denounce defense counsel as ineffective. See Davis v. State, 119 S.W.3d 359, 370 (Tex.App.-Waco 2003, pet. ref'd) (holding counsel was not ineffective when record contained no explanation why counsel did not thoroughly question police officers after defendant told him their testimony was inaccurate). Further, Davis has failed to meet the first Strickland prong, which addresses whether counsel's conduct falls within the wide range of reasonable assistance. Strickland, 466 U.S. at 689. Appellant's counsel asked Priolo questions about the length of probation, consequences of committing new offenses, the frequency a probationer must report to his officer, the requirement to repay costs and fines, and the frequency of drug testing. Based on his thorough examination of the probation officer, we cannot say counsel acted outside the range of reasonable assistance by failing to ask about the specific drug treatments appellant could receive on probation or the application of the Substance Abuse Felony Program. Davis, 119 S.W.3d at 370. Thus, we overrule appellant's sole issue and affirm the trial court's judgment.
He is also referred to as Oscar Armando Sarres Mendoza in the record.
In the same proceeding, appellant pled guilty to two other counts of robbery; however, he does not appeal from these convictions.