AFFIRMEI) and         Opinion    Flied this 6th day of March, 2013.




                                                     In The
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                                             No. 05-11-01639-CR

                                   RAYMON GARZA, Appellant
                                                        V.
                               THE STATE OF TEXAS, Appellee

                          On Appeal from the Criminal District Court No, 2
                                          Dallas County, Texas
                                   Trial Court Cause No. F1i-598424

                                     MEMORANDOM OPINION
                            Before Justices FitzGerald, Fillmore and Richter
                                                                     1
                                       Opinion by Justice Richter
        Raymon Garza was convicted of burglary of a building, and punishment, enhanced by

two prior felony convictions, was assessed at twenty years in prison. In two issues, appellant

contends he received ineffective assistance of counsel and the evidence against him is legally

insufficient to support his conviction. The facts of this case are well-known to the parties and we

do not recite them in detail here. Further, because all dispositive issues are clearly settled in law,

we issue this memorandum opinion.              See TEx R. App. P. 47.4.   We affirm the trial court’s

judgment.

        In his first issue, appellant complains he received ineffective assistance of counsel


The Honorable Martin E. Richter, Retired Justice, sitting by assignment
because his attorney failed to properly admonish him regarding the consequences of rejecting the

State’s fouryear plea offer in light of the State’s notice of intent to enhance punishment based on

two felony convictions that increased the punishment range for the offense from two to twenty

years. To prevail on a claim of ineffective assistance of counsel the defendant must show that

(1) his counsel’s performance was deficient, and (2> a reasonable probability exists that but for

the deficient performance, the result of the proceeding would be different. See Strickland v.

Washington, 466 U.S. 668, 687 (1984); Mitchell        ij’.   State, 68 S.W.3d 640, 642 (Tex. Crim. App.

2002), In reviewing the complaint, we presume counsel’s actions fell within the wide range of

reasonable and professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.

2002).     Moreover, a claim of ineffective assistance must be firmly supported in the record.

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Rarely will the record on direct

appeal be sufficient to overcome the presumption that counsel’s conduct was reasonable and

professional. Bone, 77 S.W.3d at 833.

         Appellant did not assert an ineffective assistance complaint regarding the plea offer in his

motion for new trial and there is no evidence in the record regarding counsel’s discussions with

appellant about the plea offer. The trial record reveals that after appellant was arraigned and

before trial, the prosecutor indicated to the court that the punishment range had changed and that

appellant should be informed. The trial court advised appellant that if the State could prove two

prior penitentiary trips, the punishment range would be two to twenty years and a fine up to

$10,000.     The prosecutor then confirmed the plea offer of four years was still available to

appellant. Appellant’s counsel indicated that it was up to appellant whether he wished to accept

the plea offer or not. The Court then asked appellant if he wished to accept the prosecutor’s plea

offer. Appellant responded “No, Your Honor.”




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       \ppellaiit argues that counsel’s objection to the State’s notice of enhancement, after the

jury began its deliberations on the guiltannocence stage of trial, suggests counsel did not realize

the maximum punishment had increased to twenty years at the time when the fouryear plea offer

was still available. We do not agree. Counsel’s objection focused on the timeliness of the

State’s notice to enhance punishment and reveals nothing about counsel’s understanding or

thought processes or his discussions with appellant as to the enhanced punishment range arid the

State’s plea offer. Based on the record heft)re us, we can only speculate as to why counsel acted

or failed to act as he did. See Id. at 36. Absent any evidence of counsel’s tactical or strategic

decisionmaking, we must presume counsel acted reasonably. Id.           Moreover, even assuming

appellant satisfied the first prong of the Strickland test, appellant cannot establish the second

prong. Here, the record reveals that after the trial court specifically admonished appellant about

the enhanced punishment range of two to twenty years, he still rejected the State’s plea offer.

We resolve appellant’s first issue against him.

       In his second issue, appellant complains the evidence seized was insufficient to establish

that appellant participated in any offense. Appellant contends that although there was evidence

that as many as ten wine bottles were taken from the garage, at trial, the garage owner only

identified three of the bottles that were recovered. He further argues there is no evidence that he

handled the bottles taken from the garage. In making this argument, appellant acknowledges that

he was in possession of “a small fraction of the wine stolen.”

       In reviewing a challenge to the legal sufficiency of the evidence, we examine the

evidence to determine whether any rational fact finder could have found the essential elements of

the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim.

App. 2005). We review all the evidence in the light most favorable to the verdict and assume the




                                                  3
fact finder resolved contlicts in testimony, weighed the evidence, and drew reasonable inferences

in a manner that supports the vcrdicL See Rollerson r. State. 227 SW.3d 71       ,   724 (Tex. Crim.

App. 2U07). Viewed in the light most tavorable to the verdict, the evidence shows that appelhmt

and another male identified as Dewayne Shepard, were walking when they were stopped by a

police olticer on patrol because they matched the description the otlicer had received on a

suspicious persons call. At the time they were stopped, appellant was carrying a white box with

several bottles of wine, and cans of beer and soda. Shepard was carrying a black bag that also

had wine inside of it. Shepard then directed the police to the garage where they obtained the

beverages. The owner of the garage confirmed to police that missing from her garage were a box

and various beverages from the refrigerator. At trial, photographs of three of the bottles of wine

were admitted into evidence. The garage owner confirmed these bottles were hers and were

missing from her garage refrigerator. An officer also testified that the garage owner identified all

of the beverages the police had recovered from appellant and Shepard as her property. During

his testimony, appellant denied entering the garage, but he admitted that he stood in the alley as a

lookout for about 30 minutes while Shepard was in the garage. Shepard testified that appellant

entered the garage and stole the beverages.      The evidence before us is legally sufficient to

support appellant’s conviction for burglary of a building. We resolve appellant’s second issue

against him.

       We affirm the trial court’s judgment.




                                                       7     1
                                                     MARTIN RICHThR
Do Not Publish                                       JUSTICE, ASSIGNED
TEX. R. App. 47•




11 1639F.U05


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                                            JUDGMENT

Raymon Garza. Appellant                              On Appeal from the Criminal District Court
                                                     No. 2, Dallas County. Texas
No. 05-I 1-01639-CR             V.                   Trial Court Cause No. Fl 1-59842-1.
                                                     Opinion delivered by Justice Richter.
The State of Texas, Appellee                         Justices FitzGerald and Fillmore
                                                     participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
                        6
                        t h
Judgment entered this         day of March, 2013.




                                                    MARTIN RICHTER
                                                    JUSTICE, ASSIGNED
