1 Appellant testified that although the marijuan a on his person was his, he denied having possession of the marijuana found in the sofa. NO. 07-04-0091-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL A DECEMBER 16, 2004

______________________________ ELOY CARL CRUZ, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 47 TH DISTRICT COURT OF POTTER COUNTY; NO. 45,63 2-A; HONO RABLE R ICHARD D AMBOLD, J UDGE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORAND UM OPINION Following a plea of not guilty, 1 appella nt Eloy C arl Cruz was convicted by a jury of possession of

marijuana, and the trial court assessed a sentence of one year confinement2 See Anders v . Califo rnia, 386U.S. 738 , 87 S.Ct. 1396, 18L.Ed.2d 493 (196 7). 2 in a state jail facility. In presenting this appeal, counsel has filed an Anders 2 brief in support of a motio n to with draw. We affirm and grant themotion to withdraw

. In support of his motion to withdraw, counsel certifies that he has diligently reviewed the record and, in his opinion, it reflects no reversibl e error or grounds upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (196 7). In thebrief ac comp a nying the motion to withdraw, counsel reviews the indictme nt, pretrial proceedings, voir dire, evidence introdu ced at tri al, argum ents, jury charge , objections made by trial counsel during the und erlying proceedings, the punishmenthearing, sentencing, and the effective ness of a ppellan t’s trial counsel

. He then concludes the appeal is frivol ous and w ithout me rit. In co mpliancewith High v. State, 573 S.W.2d 807, 813 (Tex.Cr .App. 1978), counsel discusses why, under the controlling authorities, there isno error in the co urt's judg ment. Counsel also shows that he has sent
a copy of the brief to appellant, an d i nformed appellant that, in his view, the appeal is withoutmeri t. In addi tion, cou nsel dem onstratesthat he n otified a ppellan t of his r ight to reviewthe record and fil e a pro se res ponse if he desired to do so. Appell ant has not availed himself of that op portunity . Neither has the S tate favor

ed us wi th a brie f. By his brie f, counsel contends “an issue that needsto be addressed is whether the Defense shou ld have objected to the State’s comments while questioning Appellant in3 The record reveals that appellant was charged with a felony, but was convicted of

a lesser included misdemeanor possession offense. 3 regard to his prior conviction f or a Class A misdem eanor po ssession of mariju ana.” 3 According to counsel, appellant’s trial counsel could h ave voic ed a leg itimate objectio n to the State’s impeachment of appellant

by that e vidence. See Tex. R. Evid. 609(a) (providing that evidence that the witness has been convicted of a crime shall be adm itted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude). Co unsel concludes, however, that: (1) trial counsel may have had a sound trial strategy for not obj ecting; and (2) the evidence of appellant’s gui lt independent

of that deficiency “was conclus ive of th e offensecharged. ” Counsel appears to suggest that appellant would be unable to prevail upon an ineffective assistance of counsel claim on the basi s of trial counsel ’s failu re to obje ct. We ag ree.
A claim of ineffective assistance of counsel is reviewed under the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Under that standard , a defen dant must establis h that: (1) co unsel's performance was deficient because it fell b el ow an objective standard of reasonableness; and (2) a reaso nable probabil ity

sufficient to undermine confidence in the outcome existed that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Cr.App. 2003 ). Fail ure to make the required showing of eith er deficient performance or sufficient prejudi ce defeats the ineffectiveness claim. Garci a
v. State, 887 S.W.2d 862, 880 (Tex.Cr.App. 1994), cert. denied , 514 U.S. 1021, 11 5 S. Ct.4

1368, 131 L.Ed .2d 223 ( 1995). Any allegation of ineffective assistance of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the all eged ineffectiveness. Thompso n v. State , 9 S.W.3d 808, 813(Tex.Cr. A pp. 1999). Generally, the record on direct appeal will not be sufficient to show that counsel's cond u ct was so deficient as to meet the first prong of the Strickland standard as the reasonableness of counsel's choicesoften in volves fa cts that d o not app ear in th e record. See Mitchell v. State, 68 S.W.3d 6 40, 642 (Tex .Cr.App. 2 002). Ins tead, an applica tion for a post-conviction writ of habeas corpus is usually the appropriate manner in which to raise and deve lop clai ms based on ineffe ctive ass istance o f counsel

. Id

. Here, it is possible, as counsel suggests, that the lack of an objection by trial counsel to the admission of

the evid ence of a ppellan t’s misde meanor co nviction , is cons istent wi th
a theory of the case that “although [ appella nt] was a marijuana user, all the marijuana found on the d ate in qu estion sh ould not be charg ed to him ” and that “as he has admitted to wrongs i n the pas t, he wou ld do thesame now if one had occurred .” (Emphasis in original ). In any event, the record is insufficient to establish whether trial counsel’s conduct
was so deficient as to meet the first pro ng of the Strickland standard. Furthermore, bec ause the re was overwhelming evidence of appellant’s guilt independent of trial counsel’s failure to object, we cannot, on this record, presume appellant would prevail on the secon d prong of that test either.5

We have also made an independent examination of the entire record to determine whether there are any other arguable g r ounds wh ich migh t support this app eal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). We have found no non-frivolous issues a nd agreewith cou nsel tha t the app eal is w ithout me rit. Curri e v. State, 51 6 S.W.2d 6 84 (Tex. Cr.App. 1 974). Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial cou rt is affi rmed.
Don H. Reavis Justice Do not pu blish.