Opinion issued September 18, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00898-CR
JOSE JESUS NAVA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 879813
MEMORANDUM OPINION
Appellant, Jose Jesus Nava, was charged by indictment with aggravated robbery. Appellant pleaded not guilty. A jury found appellant guilty as charged and assessed punishment at confinement for 20 years.
BACKGROUND
While complainant, Arturo Alacon, was stopped at a gas station to cash a check, an unknown man approached him and asked for a ride to his cousin’s house to get money for gasoline for his “ice cream” van, which was parked nearby. When Alacon told the man “no,” the man brandished a knife and forced his way into the passenger side of Alacon’s truck. The unknown man then whistled, and appellant also got into the truck. Appellant and the other man then forced Alacon to drive behind an apartment complex, where they choked and stabbed Alacon. The assailants took Alacon’s wallet, $800 in cash, a cellular phone, and Alacon’s truck. Alacon called the police from a gas station, and Officer W.L. Gant responded, finding Alacon disoriented and bleeding from a cut to his hand.
Detective Kirk Bonsal was assigned to the case. He learned that the ice cream van was parked in a motel parking lot and went to the parking lot to verify the report. At trial, Bonsal testified as follows:
Bonsal:I saw a van with a broken window and ice cream sticker parked in front of the motel of 124 and 123 [sic].
. . .
Bonsal:After looking at the van, I left out of the area, met with the supervisor. . . . I left the area and asked the auto theft supervisor and some of the auto theft detectives to watch the van, to do surveillance on the vehicle.
Prosecutor:And what did that surveillance turn up?
Bonsal:Uhm, a person left the motel room, entered the van and drove off.
Prosecutor:And what actions, if any, those of the surveilling officers?
Bonsal:A marked police unit was called to the area to pull the van over, make a traffic stop.
Prosecutor:And did you go to that traffic scene?
Bonsal:No, I did not.
Prosecutor:Based on your conversations with the officers, did you learn who was driving that van?
Bonsal:Yes.
Prosecutor:Do you see that person in the court room?
Bonsal:Yes. [Bonsal identified appellant.]
. . .
Prosecutor:Once he was stopped on traffic, what was done with him?
Bonsal:At that point, he was brought to the Pasadena Police Station.
Prosecutor:When you say brought to, was he under arrest?
Bonsal:Yes, he was.
In a single point of error, appellant complains that he was denied the effective assistance of counsel when his attorney did not object to testimony that he was arrested in the suspect van. Appellant contends that the testimony was inadmissible hearsay.
DISCUSSION
Standard of Review
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Appellant must show that (1) counsel’s performance was so deficient that he was not functioning as acceptable counsel under the sixth amendment, and (2) but for the counsel’s error, the result of the proceedings would have been different. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Thompson, 9 S.W.3d at 812; Gamble, 916 S.W.2d at 93.
Analysis
It is the defendant’s burden to prove ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gamble, 916 S.W.2d at 93. Defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 813; Gamble, 916 S.W.2d at 93.
Appellant did not file a motion for new trial. The record is silent as to why counsel did not object to the testimony of Bonsal. See Gamble, 916 S.W.2d at 93. To find that trial counsel was ineffective based on the asserted grounds would call for speculation, which we will not do. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.1994); Gamble, 916 S.W.2d at 93.
We overrule appellant’s sole point of error and affirm the judgment.
Sam Nuchia
Justice
Panel consists of Justices Hedges, Nuchia, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).