NUMBER 13-02-209-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
HUGO HERNANDEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 107th District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Yañez, and Castillo
Opinion by Justice Yañez
By one point of error, appellant Hugo Hernandez challenges the trial court’s March 21, 2002 judgment granting the State’s motion to revoke community supervision. We affirm.
The trial court has certified that Hernandez has a right to appeal. See Tex. R. App. P. 25.2 (a)(2). As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4.
Appellant contends that he received ineffective assistance from counsel because counsel allowed him to take the witness stand without advising him of the possibility that the State’s cross-examination could prove the entire case against him. We disagree.
Strickland v. Washington, 466 U.S. 668 (1984), sets forth the standard of review for effectiveness of counsel. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Strickland requires a two-part inquiry. Id. The defendant must first show that counsel’s performance was deficient, in that it fell below an objective standard of reasonableness. Id. Second, the defendant must further prove there is a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
The determination regarding whether a defendant received effective assistance of counsel must be made according to the facts of each case. Id. An appellate court looks to the totality of the representation and the particular circumstances of the case in evaluating counsel’s effectiveness. Id.
The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. at 813. There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Id. To defeat the presumption of reasonable professional assistance, “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).
Given the standard of review for ineffectiveness of counsel, appellant has not met his burden to prove trial counsel’s representation fell below an objective standard of reasonableness and that the deficient performance prejudiced his defense. The record reflects that the prosecution proved the elements necessary to revoke appellant’s community supervision during its presentation. Without a more developed record, we cannot say that defense counsel advised appellant to testify or, if counsel did so, what trial strategy informed that advice. In other words, the evidence is not sufficient to rebut Strickland’s presumption that the challenged action of trial counsel was the result of “sound trial strategy.” Strickland, 466 U.S. at 689. Appellant’s sole point of error is overruled.
We AFFIRM the judgment of the trial court.
LINDA REYNA YAÑEZ
Justice
Do not publish. Tex. R. App. P. 47.2(b).
Opinion delivered and filed this the
27th day of May, 2004