NUMBER 13-03-717-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
GILBERT MENDEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Hinojosa and Castillo
Memorandum Opinion by Justice Castillo
Gilbert Mendez appeals his convictions for murder and aggravated assault. The jury sentenced him for the murder to seventy years and for the aggravated assault to twenty years confinement in the Institutional Division of the Texas Department of Criminal Justice, to run concurrently. The trial court has certified that Mendez has the right of appeal. See Tex. R. App. P. 25.2(a)(2). In one issue, Mendez contends his trial counsel was ineffective for not objecting to evidence of: (1) Mendez's affiliation with a cadre of felons with bonds forged in the Texas prison system; and (2) Mendez's incriminating statements before and after the murder. We affirm.
I. BACKGROUND
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.
Jerry Martinez was rumored to have shot Steve Ayala during an altercation involving several people. A few days later at the beach, a large group surrounded Martinez's car. They kicked and hit the car, breaking out the rear window. Gunfire erupted. Martinez died. His wife survived. The State charged Mendez with the crimes.
II. DISPOSITION
We use a familiar two-prong standard when reviewing ineffective-assistance-of-counsel claims. Strickland v. Washington, 466 U.S. 668, 689 (1984). We first decide whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. at 687. If counsel's performance was deficient, we decide whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance. Id. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. at 694. Absent both showings, we cannot conclude that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. at 687; Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993); Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991).
The appellant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998) (per curiam); Riascos v. State, 792 S.W.2d 754, 758 (Tex. App.–Houston [14th Dist.] 1990, pet. ref'd). 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) (per curiam). When determining the validity of claimed 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 trial strategy. Strickland, 466 U.S. at 689; Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). Generally, as Mendez acknowledges in his brief, the trial record will not be sufficient to establish ineffective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). A silent record cannot rebut the presumption that counsel's performance was the result of reasonable strategy. Strickland, 466 U.S. at 688; Stafford, 813 S.W.2d at 506. However, an appellant may rebut the presumption by providing a record from which the appellate court may determine that trial counsel's conduct was not based on strategic or tactical decisions. Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994). An evidentiary hearing on a motion for new trial may provide the needed record. Robinson v. State, 16 S.W.3d 808, 813 (Tex. Crim. App. 2000). There was no evidentiary hearing in this case.
Evidence of Mendez's membership in the cadre and the varied criminal activities of its members could have been admissible under rule 404(b) as evidence of the motive, plan, preparation, knowledge, or intent of the participants in the crimes with which Mendez was charged. See Tex. R. Evid. 404(b); see also Hernandez v. State, 52 S.W.3d 268, 283 (Tex. App.–Corpus Christi 2001, no pet.). We cannot conclude on this record alone that trial counsel was deficient for not objecting to the evidence. Similarly, evidence of Mendez's incriminating statements before and after the crimes could have been admissible under rule 803(24) as statements against interest. See Tex. R. Evid. 803(24); see also Brown v. State, 871 S.W.2d 852, 855 (Tex. App.–Corpus Christi 1994, pet. ref'd). Again, we cannot conclude on this record alone that trial counsel was deficient for not objecting.
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 Mendez 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, 877 S.W.2d at 771. Mendez has not rebutted the presumption he was adequately represented. See id. We overrule Mendez's sole issue.
III. CONCLUSION
Having overruled Mendez's issue on appeal, we affirm the judgment and sentence of the trial court.
ERRLINDA CASTILLO
Justice
Do Not Publish.
Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and filed
this 31st day of August, 2004.