COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

MARI A PORTI L L O, Appellant, V. THE STATE OF TEXAS, Appellee
. § § § § § § § No. 08-08-00218- CR

Appea l from the County Court at L aw No. 1 of El Paso County , Texas (TC# 20070C09563)

O P I N I O N Maria Portillo was convic ted of the of fense of prostitution. S he wa s sentence d to 180 day s in the El Paso County jail and fined $2,000. O n appea l, she raise s a sing le issue ar g uing she was de nied her

constitutional right to ef

fec tive assistance of counse l during the punishment phase of trial. Af

firmed. A jury convicted A

ppellant of e ng ag ing in the misdeme anor of fense of prostitution. At punishment, the case was submitted to the jury on the evidenc e and a

rguments made duringthe g uilt/i nnocenc e phase . Neither side offe red a dditional evidence . The trial c ourt instructed the jury , without objection, that the punishment authorized for the of fense included a f

ine of up to $2,000, up to 180 day s in jail, or a combination of a fine a nd imprisonment. The State g ave a short closing statement, and de fense counsel de clined to ar g ue. The jury assessed the maxi mum punishment provided in the cour t’s instructions, and the trial cour t entere d judgme nt on the verdic t.Appellant ar g ues on appe al that she wa s denied e ffe ctive assistanc e of c ounsel by defe nse counsel’s f

ailure to pre sent a c losing a rgument at the punishment phase, a nd by counsel’s f

ailure to argue for

probation as a

n alternative punishment. A claim of ine ffe ctive assistanc e of c ounsel consists of two components. Strickland v. W ashington , 466 U.S. 668, 687, 104 S.C t. 2052, 2064, 80 L .Ed.2d 674 (1984). The appellant must establish both t hat his trial counsel pe rfor med def iciently , and that the de ficienc y cause d him prejudicial har

m. Id . When evaluatingtrial counsel’ s perf ormanc e under

the first prong , the revie wingcourt must not second-guess leg itimate strateg ic or tac tical dec isions made in the midst of trial. Id . at 689, 104 S.Ct. at 2065. I nstead a strong presumption that counsel’s c onduct fe ll within the wide ra

ng e of r easona

ble profe ssional assistance must be indulg ed. Id . Absent a
rec ord suffic ient to demonstrate that c ounsel’s conduc t was not the produc t of a strateg ic or tactica l decision, a re viewingcourt should pre sume that the attorne y ’s per formanc e wa s constitutionally

adequate. Goodspee d v. State , 187 S.W .3d 390, 392 (Tex.Crim.App. 2005). Unless the cha lleng ed conduc t was “‘ so outrag eous that no compe tent attorney would have eng ag ed in it’” the c onstitut ional standard is not off ended. Id
. Any alleg ation of ineff

ectivene ss must be firmly g rounded in the r ecor d. Thompson v. State , 9 S.W .3d 808, 813 (Tex.Crim.App. 1999). I t is the appellant’s burde n to demonstrate both defic ient perf

ormanc e and pr ejudice, by a pre pondera

nce of the evidenc e. See id . at 813. The revie wingcourt must consider the totality of the re prese ntation and the par ticularities of e ach
case in evaluatingeff

ectivene ss. Thompson , 9 S.W .3d at 813. We do not have the be nefit of a motion for new tria l in this case . Wit hout such a re cord, Appellant ca

nnot meet her

burden to e stablish defense counsel’s pe rfor mance duringpunishment
-2-was c onstitut ionally defic ient, nor that she wa s prejudice d by that defic iency
. See R

ylander v

. State , 101 S.W .3d 107, 110 (Tex.Crim.App. 2003). I ssue One is ove rruled. Havingoverr

uled Appellant’ s sole issue prese nted for r eview, w e af firm the trial c ourt’s judgme nt.

J uly 21, 2010 DAVI D WEL L I NGTONCHEW, C hief Just ice Be fore Chew, C.J ., McClure, a nd Rivera, JJ
. (Do Not Publish)

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