### MEMORANDUM OPINION
No. 04-07-00701-CR Andrew JARAMILLO , Appellant

v. STATE of Texas, Appellee From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 2006-CR-0759C Honorable Mary Roman, Judge Presiding Opinion by: Alma L. López, Chief Justice Sitting: Alma L. López, Chief Justice Phylis J. Speedlin, Justice Rebecca Simmons, Justice Delivered and Filed: June 18, 2008 AFFIRMED Andrew Jaramillo was convicted by a jury of aggravated robbery and sentenced to fifteen years imprisonment. Jaramillo contends his couns el was ineffective by failing to discover Jaramillo had prior convictions in New Mexico and allowing the details of those convictions to be introduced during the punishment phase of the trial through Jaramillo’s own testimony. We affirm the trial court’s judgment.04-07-00701-CR

-2- B ACKGROUND Ron McKinney was walking home from the Rive r Center Mall. A gold car, in which Jaramillo was a passenger, circled McKinney severa l times then parked behind a building. Two men exited the car and approached McKinney on f oot. Both men demande d McKinney’s belongings while one of the men pointed a gun at McKinney. McKinney surrendered his wallet, his jewelry, and the wallet and mobile phone of a friend, then fled the scene on foot. After McKinney reported the robbery, the 911 operator broadcast McKinney’s description of the suspects. Patrol officers spotted a gold car matching the description give n by McKinney, and a chase ensued. Eventually, the gold car stopped, and Jaramillo was taken from the backseat at gunpoint and arrested. McKinney’s wallet was found in the car, and his silver cross was found in Jaramillo’s pocket. McKinney identified Jaramillo as the one of the two men who robbed him. Before trial, Jaramillo signed a Written Sworn Motion for Community Supervision “indicating that he had never been convicted of a fel ony in this or any other state.” At trial, the jury convicted him of aggravated robbery. After c onferring during the punishment phase, the State and defense counsel stipulated to an affidavit evid encing two prior felony convictions against Jaramillo in New Mexico. At that point, Jaramillo asked to testify so he could expl ain to the jury that he thought the convictions had been removed from hi s record because he completed the requirements of his plea bargain. Because the convictions were still on his record, Jaramillo abandoned his application for community supervision. Following Jaramillo’s testimony, the judge explained to the jury that the range of “punishment for aggravatedrobbery is confinement in the Texas Department of Criminal Justice Institutional Division for life or any term of not more than 99 years or less than 5 years.” The jury assessed punishment at fifteen years confinement.04-07-00701-CR

-3- S TANDARD OF R EVIEW A defendant is entitled to effective assistance of counsel under both the United States and Texas Constitutions. U.S. C ONST
. amend. VI; T EX
. C ONST
. art. I, § 10; T EX
. C ODE C RIM
. P ROC
. A NN
. art. 1.051 (Vernon Supp. 2007). To prove ineffectiv e assistance of trial counsel on appeal, an appellant must show: (1) counsel’s assistance fell below an objective professional standard; and (2) counsel’s actions thereby prejudiced appellant’s defense. Strickland v. Washington , 466 U.S. 668, 687-88, 692 (1984); Thompson v. State , 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Appellant must prove, by a preponderance of the evidence, that but for counsel’s error, the outcome of his trial would have been different. Jackson v. State , 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). In reviewing an ineffective assi stance of counsel claim, we c onsider the totality of counsel’s representation in light of the particular circumst ances of the case and presume that counsel acted competently and made decisions based on a reasonable trial strategy. See Ex parte Welborn , 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). To rebut this presumption, the basis for any allegation of ineffectiveness must be affi rmatively founded in the record. Thompson , 9 S.W.3d at 813. Counsel for the defendant has a duty to prepare a defense by independently investigating the facts of the case as well the pertinent law. Butler v. State , 716 S.W.2d 48, 54 (Tex. Crim. App. 1986). “This duty includes investigating a defendant’s prior convictions.” Ex parte Langley , 833 S.W.2d 141, 143 (Tex. Crim. App. 1992). Although defense c ounsel may determine certain investigation is strategically unnecessary, “a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Strickland , 466 U.S. at 691.04-07-00701-CR

-4- It is very difficult for an appellant to estab lish ineffective assistance when the record does not specifically mention counsel’s reasons for his actions, and appellant does not develop an evidentiary record through a hearing on a motion for new trial. See Gibbs v. State , 7 S.W.3d 175, 179 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) . Therefore, a “substa ntial risk of failure accompanies an appellant’s claim of ineffectiv e assistance of counsel on direct appeal.” Thompson , 9 S.W.3d at 813. However, “when no reasonable tr ial strategy could justify the trial counsel’s conduct, counsel’s performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel’s subjective reasons for acting as she did.” Andrews v. State , 159 S.W.3d 98, 102 (Tex. Crim. A pp. 2005). Even if appellant is able to prove trial counsel’s performance was deficient, appellant must also affirmatively prove that he was prejudiced by counsel’s actions. Thompson , 9 S.W.3d at 812. Appellant must demonstrate a reasonable probability that the result of the proceeding would have been different if trial counsel had acted professionally. Id. A reasonable probability is a probability sufficient to undermine confidence in the trial’s outcome. Id. D ISCUSSION Because Jaramillo did not file a motion for new trial, there is no record disclosing the reasons trial counsel made the decisions he did. Conse quently, counsel’s ineffec tiveness, if any, is not firmly founded in the record. See Thompson , 9 S.W.3d at 813 (indicating allegation must be firmly founded in the record). Because we may not speculate about the reasons for counsel’s trial strategy, Jaramillo has failed to rebut the presumption that counsel made trial decisions based on sound04-07-00701-CR

1 Jaramillo makes a vague claim that his trial counsel should have filed a motion in limine to exclude any information regarding Jaramillo’s civil trial against a Sa n Antonio police officer. The basis for any allegation of ineffectiveness must be affirmatively founded in the record. Thompson , 9 S.W.3d at 813. We agree with the State that “[t]he record demonstrates that when the State elicited testimony regarding the suit[, tr ial] counsel objected and the objection was sustained, which would have been required [even] with a motion in limine.” Jaramillo’s claim of ineffectiveness, therefore, is not founded in the record. Id. -5- professional judgment. 1 See Hernandez v. State , 198 S.W.3d 257, 270-71 (Tex. App.—San Antonio 2006, pet. ref’d). Although the silent record defeats the ineffective assistance claim raised by Jaramillo, we briefly address how hi s claim fails because the record fa ils to establish either deficient performance or prejudice. This brief analys is should not, however, preclude Jaramillo from pursuing his claim through a writ of habeas corpus where a more complete record could change the analysis and, possibly, the result. See Thompson , 9 S.W.3d at 814-15. Jaramillo’s counsel filed a Motion In Limine on October 6, 2007, asking the court to require the State to refrain from commenting on any extr aneous offenses not included in the indictment unless and until a hearing was held outside the presence of the jury. About a year later and approximately two months prior to trial, Jaramillo signed an affidavit requesting community supervision “indicating that he had never been convict ed of a felony in this or any other state.” No prior convictions were introduced during the guilt- innocence phase of trial pursuant to the motion in limine filed by Jaramillo’s counsel. During th e recess between the guilt-innocence phase and the punishment phase of trial, Jaramillo’s counsel learned about Jaramillo’s prior convictions from the State. Jaramillo’s counsel conferred with the Stat e and decided to stipulate to evidence of two prior felony convictions in New Mexico. Following this stipulation, Jaramillo voluntarily testified “I just hope you realize that I voluntarily bring this, you know what I mean—into evidence, because it’s not something that I tried to hide from nobody. It’s just that I wasn’t real proud of that and I really thought it had been taken off of my record.” Jones v. Barnes , 463 U.S. 745, 751 (1983). Although04-07-00701-CR

-6- Jaramillo also described the two offenses to the jury, he twice apologized for his participation in them. The jury assessed punishment at the lower end of the permitted range. Jaramillo contends his trial counsel should have investigated his criminal record to prevent Jaramillo from “lying” in his affidavit reques ting community supervision; however, there is no evidence in the record that Jaramillo’s counsel ha d any reason to disbelieve Jaramillo regarding his prior convictions. Although “ordinarily counsel shoul d not blindly rely on the veracity . . . of his client’s version of the facts,” McFarland v. State , 928 S.W.2d 482, 501 (Tex. Crim. App. 1996), cert. denied , 519 U.S. 1119 (1997), [t]he reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation d ecisions are reasonable depends critically on such information. . . . And when a defendant has given counsel reason to believe that pursuing certain inves tigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable. Strickland , 466 U.S. at 691. L ooking at the totality of the circumstances, Jaramillo’s own act of signing a sworn affidavit indicating he had no prior convictions would have given his defense counsel reasonable grounds for determining no further investigation into Jaramillo’s criminal record was needed. Consequently, counsel’s ineffectiveness, if any, is not firmly founded in the record. See Thompson , 9 S.W.3d at 813. Even assuming the evidence of Jaramillo’s prio r convictions influenced the jury, we cannot conclude that counsel’s failure to investigate Jaramillo’s criminal record resulted in prejudice to Jaramillo. Thompson , 9 S.W.3d at 812. Given that Jaramillo was convicted of aggravated robbery and was, in fact, not eligible for community supe rvision, the jury’s assessment of punishment at the04-07-00701-CR

-7- lower end of the applicable range was commensurate with Jaramillo’s crime, and there exists no reasonable probability that the outcome would have been different if trial counsel had investigated Jaramillo’s criminal history. Id. C ONCLUSION For the reasons provided above, we affirm the judgment of the trial court.

Alma L. López, Chief Justice DO NOT PUBLISH