Opinion
Nos. 14-04-00111-CR, 14-04-00112-CR
Memorandum Opinion filed June 14, 2005. DO NOT PUBLISH. Tex.R.App.P.47.2(b).
On Appeal from the 179th District Court Harris County, Texas, Trial Court Cause Nos. 943,973 957,055. Affirmed.
Panel consists of Justices YATES, EDELMAN, and GUZMAN.
MEMORANDUM OPINION
Ruben Trujillo, Jr. appeals his convictions for burglary of a habitation with intent to commit assault and possession of cocaine on the ground that his trial counsel's failure to make the presentence investigative report part of the record deprived him of an opportunity to determine and demonstrate error, if any, at the punishment phase and thereby denied him effective assistance of counsel. However, to prevail on a claim of ineffective assistance, appellant must affirmatively show a reasonable probability (rather than a mere possibility) that, but for counsel's errors, the result of the proceeding would have been different. Andrews v. State, 159 S.W.3d 98, 102 (Tex.Crim.App. 2005). Without a showing of: (1) some particular prejudice that was actually suffered; and (2) a reasonable probability that a different outcome would have resulted otherwise, appellant's issue affords no basis for relief and is overruled. Accordingly, the judgment of the trial court is affirmed.
Where, as here, the record through judgment fails to demonstrate such prejudice, a further record may be developed in a motion for new trial hearing or a habeas corpus proceeding. See TEX. R. APP. P. 21.2; TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon 2005); see, e.g., Aldrich v. State, 104 S.W.3d 890, 896 (Tex.Crim.App. 2003).