No. 13-03-179-CR.
Memorandum Opinion delivered and filed May 13, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 275th District Court of Hidalgo County, Texas.
Before Justices HINOJOSA, YAÑEZ, and CASTILLO.
Memorandum Opinion by Justice CASTILLO.
A jury convicted Rolando Galvan Navarro of one count of aggravated robbery and one count of robbery. The trial court sentenced him to seventeen years confinement in the Institutional Division of the Texas Department of Criminal Justice for the aggravated robbery and six years for the robbery. It ordered the sentences to run concurrently. In a single issue, Navarro contends his trial counsel was ineffective in not seeking a severance of the two counts or, alternatively, for not requesting a jury instruction on criminal episode. We affirm.
I. BACKGROUND
The trial court has certified that Navarro has the right of appeal. See Tex.R.App.P. 25.2(a)(2). This is a memorandum opinion not designated for publication. The parties are familiar with the facts. We will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. See Tex.R.App.P. 47.4. The indictment in this case charged Navarro with two separate aggravated robberies that allegedly occurred about two months apart. In count one, the indictment alleged Navarro robbed a man at knife point. Testimony at trial indicated that the offense occurred in the parking lot of an apartment complex behind a Globe store in McAllen, Texas. The second count alleged Navarro robbed another man at gun point. The evidence showed that the second offense occurred in the parking lot of the same Globe store. The trial court charged the jury on aggravated robbery and the lesser-included offense of robbery on each count. The jury found Navarro guilty of aggravated robbery in the first count and of robbery in the second count. Navarro did not file a motion for new trial. Thus, there is no record before us of any evidentiary hearing regarding trial counsel's overall performance and trial strategy. II. DISPOSITION
A claim of ineffective assistance of counsel must be firmly supported in the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). When determining the validity of a defendant's claim of ineffective assistance of counsel, we must be highly deferential to trial counsel and avoid the distorting effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App. 1984). We presume counsel's performance was the result of sound or reasonable trial strategy. Strickland v. Washington, 466 U.S. 668, 688 (1984); Stafford v. State, 813 S.W.2d 503, 506 (Tex.Crim.App. 1991). We will not base a finding of ineffectiveness on speculation. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.-Houston [1st Dist.] 1996, no pet.). On this record, we conclude that Navarro has failed to establish that his trial counsel was ineffective. Without a record of trial counsel's overall performance and strategic decisions, we cannot determine if counsel's performance was objectively deficient or if it created an unnecessarily disadvantageous result. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Navarro has not rebutted the presumption he was adequately represented. See id. We overrule Navarro's sole issue. III. CONCLUSION
Having overruled Navarro's sole issue on appeal, we affirm the judgment and sentence of the trial court.