Affirmed and Memorandum Opinion filed October 27, 2011.




                                        In The

                      Fourteenth Court of Appeals

                                 NO. 14-10-00434-CR

                            BLAS REYES, JR., Appellant

                                           V.

                         THE STATE OF TEXAS, Appellee

                      On Appeal from the 240th District Court
                            Fort Bend County, Texas
                           Trial Court Cause No. 52891



                        MEMORANDUM OPINION

      Appellant, Blas Reyes, Jr., appeals from his conviction for aggravated robbery.
After appellant pleaded guilty and elected to have the trial judge assess punishment, the
judge held a punishment hearing and sentenced appellant to 12 years’ imprisonment. In a
single issue on appeal, appellant contends that he received ineffective assistance of
counsel at the punishment hearing. We affirm.

                                      Background

      Appellant was charged with aggravated robbery and credit card abuse after he
stole an elderly woman’s purse. Appellant was in a vehicle and the victim was standing
in a parking lot when he grabbed her purse and pulled her against the vehicle causing
injuries. Appellant pleaded guilty to the aggravated robbery charge without an agreed
recommendation on punishment.        At the punishment hearing, the State called no
witnesses but offered the police offense report and the presentence investigation report
(PSI) into evidence. These exhibits were admitted without objection.

       During the defense’s case-in-chief, counsel called appellant’s mother and father as
well as his cousin and appellant himself. Appellant’s father, Blas Reyes, Sr., testified
that he did not have problems with appellant during most of his adolescence, but
appellant began behaving differently in high school. According to Reyes, appellant “fell-
in” with a bad group of friends and did not finish high school. Things got better for a
little while when appellant got a job, but then he started “hanging out” with a particular
friend and trouble began again. Reyes indicated that he later learned that drug use was
part of his son’s problem.

       Reyes further said that on the weekend the offense occurred, appellant “didn’t
look right” and also had a car accident. Reyes was “absolutely” surprised that appellant
had been charged with this crime; he said that appellant had never done anything like this
before and had said several times that he was sorry about what happened. If appellant
was given probation, Reyes said that appellant could live with Reyes and his wife,
appellant’s mother, and that they would make sure appellant did all that was required as
terms of his probation. Reyes admitted, however, that he had not been able to control
appellant when appellant was younger, appellant had been in jail before, and appellant
had a drug problem. Reyes further claimed that appellant was “[c]ompletely different”
since he had been in jail.

       Appellant’s mother, Enedina Reyes, also testified about appellant’s trouble in
school and the fact that after he had gotten a job, everything seemed to be okay for a
while. She said that on the weekend the offense occurred, appellant seemed different, as



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though he had been doing drugs. She also said he had had a problem with his girlfriend
around that time. She indicated a desire to help him get help for his drug problem.

       Appellants’ cousin, Juan Mancillas, testified that he was “[v]ery surprised” to
learn that appellant committed the offense charged. Mancillas said that appellant was
different since the offense and it “hit [appellant] real hard to find out what he did.”
Appellant told his cousin that he [appellant] was not in his “right senses” when he
committed the offense.

       In his testimony, appellant apologized for committing the offense and explained
that he had had problems with his girlfriend, got depressed, and turned to drugs for help.
He said that he had been attending a “drug class” while in jail but also acknowledged he
had previously told his father he would stop taking drugs and had not.

       The police offense report contained both the victim’s and appellant’s versions of
events (appellant’s version concentrated on his girlfriend problems and drug use as
causes). The PSI noted that appellant also had a pending charge for credit card abuse and
included a synopsis of the police report. It additionally covered appellant’s drug use and
prior convictions for DWI and marijuana possession.

       In closing argument, the prosecutor pushed for a 20-year sentence.         Defense
counsel made a plea for probation and placing appellant in a drug rehabilitation facility.
Counsel explained that appellant was young, had turned himself in, had already served
six months, needed help, and had a loving family to support him. At one point, however,
counsel also stated: “He was drugged out, and I admit it’s scary. I don’t want to go on
the streets either, Judge.”

       Appellant was charged with aggravated robbery as a first degree felony, which
carried a punishment range of between five to 99 years’ imprisonment or imprisonment
for life. See Tex. Pen. Code § 12.32(a). The trial court sentenced appellant to 12 years’
imprisonment.


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                                  Standards of Review

       In a single issue, appellant contends he received ineffective assistance of counsel
during the punishment hearing. The Sixth Amendment to the United States Constitution
guarantees the right to reasonably effective assistance of counsel in criminal
prosecutions. U.S. Const. amend. VI; McMann v. Richardson, 397 U.S. 759, 771 n.14
(1970). In reviewing an ineffective assistance claim, an appellate court “must indulge a
strong presumption that counsel’s conduct [fell] within the wide range of reasonable
professional assistance; that is, [appellant] must overcome the presumption that, under
the circumstances, the challenged action might be considered sound trial strategy.”
Strickland v. Washington, 466 U.S. 668, 689 (1984). Under the two-pronged Strickland
test, to demonstrate ineffective assistance of counsel, a defendant must first show that
counsel’s performance was deficient, i.e., that his assistance fell below an objective
standard of reasonableness; second, a defendant must affirmatively prove prejudice by
showing a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812
(Tex. Crim. App. 1999).

       Any allegation of ineffectiveness must be firmly founded in the record, and the
record must affirmatively demonstrate the alleged ineffectiveness. Id. at 813. Appellant
bears the burden of proving by a preponderance of the evidence that counsel was
ineffective.   Id.   In the majority of cases, the record on direct appeal is simply
undeveloped and cannot adequately reflect the alleged failings of trial counsel. Jackson
v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). This is particularly true when the
alleged deficiencies are matters of omission and not of commission revealed in the
record. Id. A proper record is best developed in a habeas corpus proceeding or in a
motion for new trial hearing. DeLeon v. State, 322 S.W.3d 375, 381 (Tex. App.—
Houston [14th Dist.] 2010, pet. ref’d). Ordinarily, trial counsel should be afforded an
opportunity to explain his or her actions, and in the absence of such opportunity, an
appellate court should not find deficient performance unless the challenged conduct was
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so outrageous that no competent attorney would have engaged in it. Goodspeed v. State,
187 S.W.3d 390, 392 (Tex. Crim. App. 2005). To establish ineffective assistance of
counsel based on a failure to object, appellant must demonstrate that the trial court would
have committed harmful error in overruling the objection if trial counsel had objected.
DeLeon, 322 S.W.3d at 381.

                                         Analysis

      In his brief, appellant specifically complains about the following conduct of
defense counsel: (1) failing to object to admission of the police offense report; (2)
eliciting damaging testimony from defense witnesses; and (3) making damaging remarks
during closing argument. By rule and by case law, the offense report was most likely
excludable as hearsay. See Tex. R. Evid. 803(8)(B); Fischer v. State, 252 S.W.3d 375,
385 & n.37 (Tex. Crim. App. 2008) (“[A]n offense report, in any form, is not admissible
under the hearsay rule; it is specifically barred by Rule 803(8)(B).”). However, the
record is silent here as to why defense counsel might have declined to object to admission
of this report during the punishment hearing. It is possible that counsel knew or surmised
that if he kept out the report, which included the victim’s version of events, that the
elderly victim herself would have been called to testify and given a potentially more
impactful live version of events than the one contained in the report. Further, the
admissible PSI contained a summary of the offense report, so at least some part of the
information was already being provided. The failure to object to the offense report was
not so outrageous that no competent attorney would have acceded to the trial court’s
ruling. See Goodspeed, 187 S.W.3d at 392.

      As damaging testimony from his family members, appellant points particularly to
statements regarding his drug use and other events occurring the weekend of the offense
(e.g., appellant used drugs and wrecked a car). Appellant also highlights statements
suggesting that he was difficult to control at times, had troubles in school, and dropped
out of school. Again, the record is silent as to defense counsel’s strategy. It is likely,

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however, that counsel determined that having appellant’s family testify was overall a
positive strategy, even though some negative testimony would come out as a result.
Appellant’s family testified that they were surprised he had committed the crime, opined
that drugs and girlfriend problems were the likely causes (thus supporting appellant’s
own version of events), and promised they would be there to help him if he was placed on
probation. Defense counsel may have even solicited some of the negative testimony in
an effort to demonstrate full disclosure to the judge. This tactic may well have eroded the
impact of the prosecutor’s cross-examination of those witnesses. Appellant’s second
argument also does not demonstrate outrageous conduct or deficient performance.

       Lastly, appellant emphasizes defense counsel’s following remark from closing
argument: “He was drugged out, and I admit it’s scary. I don’t want to go on the streets
either, Judge.” Appellant construes the comment as “I don’t want to go on the streets
[with Reyes there] either, Judge.” In context, however, the remark appears to be simply
an admission that putting appellant back on the streets with no help for his drug problem
could be a scary prospect. The comments came in the middle of a plea to take a chance
on appellant given his age, family support, and remorse. This plea also involved a
recommendation that appellant be assigned to drug rehabilitation as a requirement of his
probation. Under the circumstances, the remark was not so outrageous that no competent
attorney would have uttered it.     Considering the lack of explanation in the record
concerning defense counsel’s motivation or strategy, appellant has not overcome the
strong presumption that counsel’s performance was adequate. See Strickland, 466 U.S. at
689.

       We affirm the trial court’s judgment.


                                          /s/       Martha Hill Jamison
                                                    Justice

Panel consists of Justices Seymore, Brown, and Jamison.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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