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

I VAN RODRI GUEZ AKA JESUS NAVA, Appellant,
v.
THE STATE OF TEXAS, Appellee
. § § § § § § No. 08-09-00029- CR

Appea l from the 283rd Judi cial District Court of Da llas County , Texas (TC# F- 0750471-T)

O P I N I O N I van Rodriguez appea ls his conviction for ag g ravated robbe ry with a dea dly

wea pon. A jury found him g uilty

of first degree felony

for his off

ense, a nd the trial judg e sente nced him to 25 y ear s’ imprisonment. Appellant cha lleng es the c onviction based on inef fec tive assistance of counsel. We af

firm. In Marc h 2007, Ms. Tina Gong re he ard a n alar m go of f and sa w a r ed truc k parke d at Under g round Custom Body Works, a car

body shop at the interse ction of L ong view and Hunnicut in Dallas County , Texas (“B ody Works” or “the shop”). The red truc k had smashed into the shop’s bay

door. Appe llant and another y oung Hispanic man r olled tire rims out of the shop and loade d them into the bed of the truc k. Ms. Gong re c alled 911. About that same time, Mr. Victor Ma

rtinez, Body

Works’ owner, a

rrived a nd parke d his car to block the red truc k. Mr. Martinez dre w his g un and orde red the young Hispanic man to his knee s. Appellant, fr om behind and at close ra

ng e, shot at Mr. Mar

tinez. Mr. Martinez returned f ire, a nd wounded Appellant. L aw e nforc ement off icer s and an a

mbulance the n arr ived on the sce ne.Appellant wa s char g ed by indictment with the offense of ag g ravated robbe ry , and he enter ed a ple a of not g

uilty to the offe nse. At the e nd of the trial, the jur y found Appe llant guilty of the c harg ed off

ense. The court then a ssessed punishment for A ppellant at twenty -five year s’ confine ment. Appellant filed a motion for new tria l on the basis that “the ve rdict [was] contrary to the law and the evidenc e,” a nd he also filed a

notice of a

ppeal. In his sole issue, Appellant contends he was de nied ef fec tive assistance of counse l at trial when tria l counsel fa iled to reque st a lesser inc luded offe nse instruction on ag g ravated assault. Appellant conte nds his attorney rende red ine ffe ctive assistanc e of c ounsel by failingto ask the court to provide a

jury char g e re g ardinga lesser included off

ense of ag g ravated assault. He argues that evide nce at trial showed he w as guilty only of ag g ravated assault, and be cause conviction of a g g ravated assault is a sec ond deg ree offe nse, and punishment for it is l esser

than the first degree offe nse of a g g ravated robbe ry , he should have been a ffor ded the oppor tunity to be sentenc ed in ac corda

nce w ith the punishment rang e for a sec ond deg ree offe nse. We reviewclaims of inef fec tive assistance of counse l under the two- step ana ly sis adopted by the United States Supreme Court in Strickland v. W ashington , 466 U.S. 668, 687, 104 S.C t. 2052, 2064, 80 L .Ed.2d 674 (1984). See H ernandez v . State , 988 S.W .2d 770, 771-72 (Tex.Crim.App. 1999). Under the first prong , the def endant must show that counse l’s perf ormanc e wa s deficie nt to the ext ent that counse l failed to func tion as the “c ounsel” g uara nteed by the Six th Amendment. Jack son v. State , 877 S.W .2d 768, 771 (Tex.Crim.App. 1994). Alleg ations of ineff ective a ssistance must be firmly founded in the r ecor d, and the r ecor d must affirmatively

demonstrate the alleg ed inef fec tiveness. Mallett v. State , 65 S.W .3d 59, 63 (Tex.Crim.App. 2001). The re view of de fense counsel’s r epre sentation is highly defe rential a

nd
-2-presumes that counsel’s a ctions fell within a wide r ang e of r easona ble profe ssional assistance. Id . at 63. When the re cord is silent as to counse l’s motivations for tactica l decisions, the appellant usua lly

cannot ove rcome the strongpresumption that counsel’s c onduct is rea sonable. Id . In most cases on dire ct appe al, the re cord is not suffic iently develope d and ca

nnot adequately demonstrate the motives behind counsel’s de cisions. Id
. Under the sec ond prong , the def endant must establish that counsel’ s deficie nt perf ormanc e pre

judiced the de fense
. Strickland , 466 U.S. at 687, 104 S.Ct . at 2064; Jack son , 877 S.W .2d at 771. Prejudice is established by a showingthat there is a rea sonable proba bility that but for counse l’s unprofe ssional error s, the result of the pr ocee ding w ould have be en differ ent. Strickland , 466 U.S. at 694, 104 S.Ct . at 2068; Jack son , 877 S.W .2d at 771. The prejudice analy sis need not be a ddresse d when the a ppellant fa ils to satis fy

the first prongof the analy sis. See M

allett , 65 S.W .3d at 68. A trial counse l has no opportunity to expl ain his conduct if the de fenda nt he re prese nts does not raise an alleg ation of ineff ective a ssistance of c ounsel in a motion for newtrial. Goodspee d v. State , 187 S.W .3d 390, 392 (Tex.Crim.App. 2005). Wi thout such opportunity , an appellate court should not find the trial counse l’s perf ormanc e def

icient, unless the cha lleng ed conduct wa s “so outrag eous that no compe tent attorney would have e ng ag ed in it.” Id . at 392, quoting Garcia v. State , 57 S.W .3d 436, 440 (Tex.Crim.App. 2001). I n this case, Appe llant filed a motion for new

trial, but he did not raise a ny alleg ations of ineff

ective a ssistance of c ounsel in the motion. Moreover , Appellant fa iled to point to any passag e in the re cord, a

nd he has not provided this Court with any authority , from which w e could c onclude that the a ctions complained of

are so far outside the rang e of r easona ble profe ssional assistance a s to be dee med
-3-defic ient without the benef it of additional evidenc e. The ref ore, A ppellant has fa iled to car

ry his burden unde r the fir st prong of the Strickland test on his ineffec tive assistance claim. See Garcia , 57 S.W .3d at 440-41. Ac cording ly , I ssue One is ove rruled. Havingoverr

uled Appellant’ s 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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