## NUMBER 13 - 1 2 - 00 139 - CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

- EDINBURG

JOSE MANUEL SALDIVAR GARCIA , Appellant,

v. THE STATE OF TEXAS , Appellee.

On appeal from the 430th District Court of Hidalgo County, Texas.



## MEMORANDUM OPINION
Before Justice s Garza , Benavides, and Perkes Memorandum Opinion by Justice Perkes Ap p ellant , Jose Manuel Saldivar Garcia , appeals his conviction of three counts of aggravated sexual assault , a first

- degree felony. See T EX

. P ENAL C ODE A NN

. § 22.021 ( West 2011). Appellant pleaded no lo contendere and was sentenced to three twenty

year terms (one for each offense ) , to be served concurrently in the Texas Department of2

Criminal Justice , Institutional Division. By his sole issue, appellant argues his counsel provided ineffective assistance by advising him that if he pleaded nolo contendere , he
would receive no more than five years ’ confinement . We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND The record reflects that appellant answered “ yes ” when the trial court asked if he understood the nature of the charges against him, that he had a conversation with his lawyer about them, and that he understood the possible range of punishment. The record also reflects that appellant answered “yes” when asked if he was sati sfied with the legal services pro vided to him.
II. STANDARD OF REVIEW
A ppellant contends his trial counsel ’ s failure to advise him of the consequences of his plea equated to ineffective assistance of counsel. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. C ONST

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

. C RIM

. P ROC

. C ODE A NN . art. 1.051 (West 2010). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 686 (1984). In order to prove an ineffective assistance of counsel claim, a defendant must show by a preponderance of
the evi dence that (1) counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment , and (2) there is a reasonable probability that, but for counsel’s error or omission, the result of the proceedings would
have been different. Strickland , 466 U.S. at 687

– 96; Thompson v. State , 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The defendant must overcome the strong presumption that3

the challenged action might have been sound trial strategy. Thompson , 9 S.W.3d at
813. We will not speculate to find trial counsel ineffective when the record is silent as to counsel’s reasoning or strategy. Godoy v. State , 122 S.W.3d 315, 322 (Tex. App.

— Houston [1st Dist.] 2003, pet. ref’d). When, as in this case, there is no evidentiar y record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel's performance was deficient

. 1 See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); see also Aldaba v. State , 382 S.W.3d 424, 431 (Tex. App.

— Houston [14th Dist.] 2009, pet. ref'd)

. If there is no hearing , or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective

- assistance claim. Stults v. State, 23 S.W.3d 198, 208

– 09 (Tex. App.

— Houston [14th Dist.] 2000, pet. ref’d). The Texas Court of Criminal Appeals has stated that it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel’s tria l strategy. See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005). On a
silent record, this C ourt can find ineffective assistance of counsel only if the challenged conduct was so outrageous that no competent attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

1 Generally, a post

- conviction application for a writ of habeas corpus is a better vehicle than direct appeal for presenting an ineffective

- assistance claim. See T EX

. C RIM

. P ROC

. C ODE A NN

. a rt. 11.07(4). (West 2007 ). “ On direct appeal, the record is usua lly inadequately developed and cannot adequately reflec t the failings of trial counsel for an appellate court to fairly evaluate the merits of such a serious allegation.” Lopez v. State , 343 S.W.3d 137, 143 (Tex. Crim. App. 2011) (quotation and citations omitted)

. Unlike other claims rejected on direct appeal, claims of ineffective assistance of counsel rejected due to lack of adequate information may be reconsidered on an applicati on for a writ of habeas corpus. Id

.4 III. ANALYSIS Appellant fails to meet either prong of the Strickland test

. The record is devoid of any evidence that supports appellant’s factual assertions

. “ An appellate court will not speculate about the rea sons underlying defense counsel’ s decisi ons. For this reason, it is critical for an accused relying on an ineffective assistance of counsel claim to make the necessary record in the trial court. ” Stults , 23 S.W.3d at 208

. With respect to the first prong, the record does not support the assertion that counsel’s performance was deficient. In fact, the record supports the oppo site assertion, as appellant affirmed that he was satisfied with the performance of counsel and that he ha d been informed of the possible range of punishment by his counsel and the trial court. The second prong fails
because there is no record evidence 2 that the result at trial would have been any different but for counsel’s alleged deficiency

. To succeed on an ineffective

- assistance claim, appellant is required to meet his burden of proof under both Strickland prongs , or the claim must fail. “ Absent both showings , an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable

. ” Ex parte Menchaca , 854 S.W.2d 128, 131 (Tex. Crim. App. 1993 ) (en banc)

.

2 Appellant attached an affidavit to his brief to substantiate his ineffective assistance claim , wherein he claims that he was instructed to plea d nolo contendere , so that he would receive five years’ incarceration. The affidavit asserts facts that are not in the appellate record. As an appellate court, we do not consider facts that are not in the appellate record. See T EX

. R. A PP

. P

. 34.1 ; see also Pollan v. State, 612 S.W.2d 594, 596 (Tex. Crim. App. [Panel Op.] 1981)

. On November 7, 2012, the State filed a Motion to Strike appellant’s brief . In this motion, the State asked the Court to strike appellant’s entire brief because an affidavit was attached that contained facts not included the appellate record. In light of our decision not to consider the attached affidavit, we deny the State’s motion to strike appellant’s brief as moot.5

We overrule appellant's sole issue on appeal

. IV. CONCLUSION We affirm the trial court’s judgment

.

GREGORY T. PERKES Justice Do not publish. T EX

. R. A PP

. P. 47.2(b). Delivered and filed the 15th day of August , 201 3

.