NUMBER 13-12-00139-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOSE MANUEL SALDIVAR GARCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 430th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Perkes
Memorandum Opinion by Justice Perkes
Appellant, Jose Manuel Saldivar Garcia, appeals his conviction of three counts of
aggravated sexual assault, a first-degree felony. See TEX. PENAL CODE ANN. § 22.021
(West 2011). Appellant pleaded nolo contendere and was sentenced to three twenty-
year terms (one for each offense), to be served concurrently in the Texas Department of
Criminal Justice, Institutional Division. By his sole issue, appellant argues his counsel
provided ineffective assistance by advising him that if he pleaded nolo contendere, he
would receive no more than five years’ confinement. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The record reflects that appellant answered “yes” when the trial court asked if he
understood the nature of the charges against him, that he had a conversation with his
lawyer about them, and that he understood the possible range of punishment. The
record also reflects that appellant answered “yes” when asked if he was satisfied with the
legal services provided to him.
II. STANDARD OF REVIEW
Appellant contends his trial counsel’s failure to advise him of the consequences of
his plea equated to ineffective assistance of counsel. Both the United States and Texas
Constitutions guarantee an accused the right to assistance of counsel. U.S. CONST.
amend. VI; TEX. CONST. art. I, § 10; see also TEX. CRIM. PROC. CODE ANN. art. 1.051
(West 2010). This right necessarily includes the right to reasonably effective assistance
of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prove an
ineffective assistance of counsel claim, a defendant must show by a preponderance of
the evidence that (1) counsel’s performance was so deficient that he was not functioning
as acceptable counsel under the Sixth Amendment, and (2) there is a reasonable
probability that, but for counsel’s error or omission, the result of the proceedings would
have been different. Strickland, 466 U.S. at 687–96; Thompson v. State, 9 S.W.3d 808,
812 (Tex. Crim. App. 1999). The defendant must overcome the strong presumption that
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the challenged action might have been sound trial strategy. Thompson, 9 S.W.3d at
813. We will not speculate to find trial counsel ineffective when the record is silent as to
counsel’s reasoning or strategy. Godoy v. State, 122 S.W.3d 315, 322 (Tex.
App.—Houston [1st Dist.] 2003, pet. ref’d).
When, as in this case, there is no evidentiary record developed at a hearing on a
motion for new trial, it is extremely difficult to show that trial counsel's performance was
deficient.1 See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); see also
Aldaba v. State, 382 S.W.3d 424, 431 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd).
If there is no hearing, or if counsel does not appear at the hearing, an affidavit from trial
counsel becomes almost vital to the success of an ineffective-assistance claim. Stults v.
State, 23 S.W.3d 198, 208–09 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). The
Texas Court of Criminal Appeals has stated that it should be a rare case in which an
appellate court finds ineffective assistance on a record that is silent as to counsel’s trial
strategy. See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005). On a
silent record, this Court can find ineffective assistance of counsel only if the challenged
conduct was so outrageous that no competent attorney would have engaged in it.
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
1
Generally, a post-conviction application for a writ of habeas corpus is a better vehicle than direct
appeal for presenting an ineffective-assistance claim. See TEX. CRIM. PROC. CODE ANN. art. 11.07(4).
(West 2007). “On direct appeal, the record is usually inadequately developed and cannot adequately
reflect the failings of trial counsel for an appellate court to fairly evaluate the merits of such a serious
allegation.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011) (quotation and citations omitted).
Unlike other claims rejected on direct appeal, claims of ineffective assistance of counsel rejected due to
lack of adequate information may be reconsidered on an application for a writ of habeas corpus. Id.
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III. ANALYSIS
Appellant fails to meet either prong of the Strickland test. The record is devoid of
any evidence that supports appellant’s factual assertions. “An appellate court will not
speculate about the reasons underlying defense counsel’s decisions. For this reason, it
is critical for an accused relying on an ineffective assistance of counsel claim to make the
necessary record in the trial court.” Stults, 23 S.W.3d at 208. With respect to the first
prong, the record does not support the assertion that counsel’s performance was
deficient. In fact, the record supports the opposite assertion, as appellant affirmed that
he was satisfied with the performance of counsel and that he had been informed of the
possible range of punishment by his counsel and the trial court. The second prong fails
because there is no record evidence2 that the result at trial would have been any different
but for counsel’s alleged deficiency.
To succeed on an ineffective-assistance claim, appellant is required to meet his
burden of proof under both Strickland prongs, or the claim must fail. “Absent both
showings, an appellate court cannot conclude the conviction resulted from a breakdown
in the adversarial process that renders the result unreliable.” Ex parte Menchaca, 854
S.W.2d 128, 131 (Tex. Crim. App. 1993) (en banc).
2
Appellant attached an affidavit to his brief to substantiate his ineffective assistance claim, wherein
he claims that he was instructed to plead nolo contendere, so that he would receive five years’
incarceration. The affidavit asserts facts that are not in the appellate record. As an appellate court, we do
not consider facts that are not in the appellate record. See TEX. R. APP. P. 34.1; see also Pollan v. State,
612 S.W.2d 594, 596 (Tex. Crim. App. [Panel Op.] 1981).
On November 7, 2012, the State filed a Motion to Strike appellant’s brief. In this motion, the State
asked the Court to strike appellant’s entire brief because an affidavit was attached that contained facts not
included the appellate record. In light of our decision not to consider the attached affidavit, we deny the
State’s motion to strike appellant’s brief as moot.
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We overrule appellant's sole issue on appeal.
IV. CONCLUSION
We affirm the trial court’s judgment.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
15th day of August, 2013.
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