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 grams, and with using and exhibiting a deadly weapon. The jury 

found appellant guilty as charged in the indictment and sentenced appellant to twentyseven and one-half years‘ incarceration 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.
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BACKGROUND

Anna Ortiz, a deputy investigator with the Harris County Sheriff‘s Office, began 

her 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 Rose 

Lane. Ortiz conducted surveillance of the house, observing surveillance cameras outside 

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, which 

confirmed what she had learned of the residence.

On March 25, 2009, the Houston Police Department provided a canine unit to sniff 

outside the house. Subsequently, on that same day, Ortiz 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 field-tested positive for the presence of cocaine and 

totaled approximately 4,100 grams 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 table 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 also showed the individuals appellant gave the substances 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 master 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 holding 
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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

excerpts 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. 

Appellant testified that he moved into the home at 3903 Mountain Rose Lane

when he married Recendez and had been living there for about five months when he was 

arrested. Appellant asserted that he learned Recendez was selling drug about a monthand-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 was going to pick up something, and he 

was only ―a delivery 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 deliver 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 followed. 

ANALYSIS

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. CONST. amend. VI; TEX.

CONST. art. I, § 10; see also TEX. CODE CRIM. PROC. ANN. art. 1.051 (West Supp. 2011). 

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 ineffective 

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 confidence in the outcome, that but for counsel‘s 
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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 evidence. 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 representation. 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. Crim. 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))). To overcome the presumption of reasonable professional 

assistance, any allegation of ineffectiveness must be firmly founded in the record, and the 

record must demonstrate 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 reference 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.

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

video. 
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These complaints were 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 counsel was ineffective based on these assertions 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 acted 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 was 

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 hearing record with additional information). We overrule appellant‘s sole issue.

Having overruled appellant‘s issue, we affirm the trial court‘s judgment.

/s/ Sharon McCally

Justice

Panel consists of Justices Brown, Boyce, and McCally.

Do Not Publish — TEX. R. APP. P. 47.2(b).