Affirmed and Memorandum Opinion filed January 31 , 2012

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 10

- 01212

- CR

JUAN MANUEL MESTICO

- RODRIGUEZ , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 174th District Court

Harris County, Texas Trial Court Cause No. 1260041



### M E M O R A N D U M O P I N I O N
Appellant Juan Manuel Mestico

- Rodriguez was charged by indictment with possession with intent to deliver a controlled substance, namely cocaine, weighing at
least four hundred gram s , and with using and exhibiting a deadly weapon

. The jury found appellant guilty as charged in the indictment and sentenced appellant to twenty

seven and one

- half years‘ incarcera tion and assessed a fine of $1.00. In his sole issue in this appeal, appellant claims his trial counsel rendered ineffective assistance of counsel.
We affirm.2 B ACKGROUND Anna Ortiz, a deputy investigator with the Harris County Sheriff‘s Office , began
h er investigation of appellant and his wife Maricela Recendez at the beginning of March 2009, when Ortiz received information that appellant and Recendez were involved in drug trafficking and were keeping narcotics in their home located at 3903 Mountain Ros e Lane. Ortiz conducted surveillance of the house , observing surveillance ca meras outsi de the house, which she explained is common for people who are dealing drugs out of their
home. Ortiz also observed appellant‘s ―comings and goings‖ from the house , wh ich
confirmed what she had learned of the residence.
On March 25, 2009, t he Houston Police Department provided a canine unit to sniff
outside the house. Subsequently, o n that same day, O rtiz obtained and executed a search

warrant for the house . Law enforcement recovered drugs , $5,200.00 in cash , a money
counter , a digital video recording ( DVR ) from the home‘s surveillance system , and an
AK

- 47. Substances recovered f ield

- test ed positive for the presence of cocaine and
totaled approximately 4,100 gram s or just over four kilos

. Subsequent analysis by the Harris County Institute of Forensic Science confirmed there was over 400 grams of
cocaine.
Excerpts from a DVR from the home‘s surveillance system on March 16, 2009, showed appellant sitting at a tab le unwrapping a ―cookie‖ of what appeared to be crack cocaine and cutting into smaller pieces. Video excerpts from March 21, 2009, showed appellant with items that appeared similar to exhibits seized , which field tested positive
for cocaine. The video al so showed the individuals appellant gave the substance s to were making crack cocaine or cutting the cocaine with another substance as he returned the
items to a bedroom with a safe. The video further showed appellant retrieving a money counter from the ma ster bedroom and using it to count a large quantity of cash , which he then stacked up. Video excerpts from March 22, 2009, showed appellant outside holding3

a rifle with several other men who also had rifles. Later that day, appellant entered a
room that contained a safe wherein the police found large quantities of cocaine. Video

e xcerpts from March 24, 2009, showed appellant holding a plastic bag with a white substance, which appeared similar to two items of evidence seized containing cocaine.
Appellan t testified that he moved into the home at 3903 Mountain Rose Lane
when he married Re c endez and had been living there for about five months when he was
arrested

. Appellant assert ed that he learned Recendez was selling drug about a month

and

- a

- half after they were married , and claimed that he had never sold drugs before and slowly became involved in Recendez‘s drug business. Appellant further claimed that
Recendez would call and tell him that someone w as going to pick up something, and he was only ―a deli very boy when people would come by the house [.] ‖ Appellant also asserted that he never had any guns before he met Recendez, and the gun found under the bed belonged to her former husband.
The jury found appellant guilty of possession with intent to deli ver at least 400 grams of cocaine and that he used or exhibited a deadly weapon, namely a firearm, during the commission of the offense. The jury assessed punishment at twenty

- seven and

one

- half years‘ incarceration and a fine of $1.00. This appealed fol lowed.

A NALYSIS In his sole issue on appeal, appellant claims that his trial attorney rendered
ineffective assistance of counsel. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. C ONST . amen d. VI; T EX

. C ONST . art. I, § 10; see also T EX

. C ODE C RIM

. P ROC

. A NN . art. 1.051 (West Supp. 20 11 ). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 686 (1984). To prevail on an in effective assistance claim, the appellant must show that (1) counsel‘s performance was deficient by falling below an objective standard of reasonableness , and (2) there is a reasonable probability, sufficient to undermine the confidenc e in the outcome, that but for counsel‘s4

unprofessional errors, the result of the proceeding would have been different. Cannon v.
State , 252 S.W.3d 342, 348

– 49 (Tex. Crim. App. 2008). The defendant must prove ineffectiveness by a preponderance of the evi dence. Perez v. State , 310 S.W.3d 890, 893 (Tex. Crim. App. 2010). Review of counsel‘s representation is highly deferential, and the reviewing court indulges a strong presumption that counsel‘s conduct fell within a wide range of reasonable representati on. Salinas v. State , 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel‘s actions. Lopez v. State , 343 S.W.3d 137, 143 (Tex. Cr im. App. 2011); Mallett v. State , 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); see also Goodspeed v. State , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (― ̳[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.‘‖ (quoting Rylander v. State , 101 S.W.3d 107, 111 (Tex. Crim. App. 2003))). T o overcome the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the
record must dem onstrate the alleged ineffectiveness. Salinas , 163 S.W.3d at 740. When the record is silent as to trial counsel‘s strategies, we will not conclude that counsel‘s performance was deficient ―unless the challenged conduct was  ̳so outrageous that no competent attorney would have engaged in it.‘‖ Goodspeed , 187 S.W.3d at 392 (quoting
Garcia v. State , 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
Appellant claims his trial counsel was ineffective by failing to object to (1) the
State‘s leading questions to Ortiz ; (2) Ortiz ‘s refer ence to the substance recovered as
cocaine ; (3) Ortiz‘s testimony that the firearm was a deadly weapon ; and ( 4 ) the prosecutor‘s closing argument in which he told the jurors that they could view the
surveillance video in its entirety

. 1

1 The State showed excerpts of what the prosecutor referred to as two months of surveillance video.5

The s e complaint s w ere not raised in the trial court by motion for new trial. Because there was no motion for new trial hearing, the record is silent regarding trial counsel‘s reasons for not objecting to Ortiz‘s testimony and the State‘s closing argument.
To find that trial coun sel was ineffective based on these as sertion s would call for speculation about why counsel failed to object

. See Jackson v. State , 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); see also Tong v. State , 25 S.W.3d 707, 714 (Tex. Crim. App. 2000) (―[W]ithout some explanation as to why counsel acte d as he did, we presume that his actions were the product of an overall strategic plan.‖).
Based on this record, appellant has failed to rebut the strong presumption in favor of effectiveness of counsel, and we cannot conclude that counsel‘s performance w as deficient. See Lopez , 343 S.W.3d at 143

– 44 (holding that the appellant failed to satisfy his burden to show deficient performance because the record was silent regarding counsel‘s reasons for failing to object and the appellant did not supplement the motion for
new trial hear ing record with additional information). We overrule appellant‘s sole issue. Having overruled appellant‘s issue, w e affirm the trial court‘s judgment.

/s/ Sharon McCally Justice

Panel consists of Justices Brown, Boyce, and McCally.
Do Not Publish

— T EX

. R. A PP

. P. 47.2( b).