                                 MEMORANDUM OPINION

                                        No. 04-07-00701-CR

                                      Andrew JARAMILLO,
                                            Appellant

                                                 v.

                                          STATE of Texas,
                                             Appellee

                     From the 175th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2006-CR-0759C
                              Honorable Mary Roman, Judge Presiding

Opinion by:       Alma L. López, Chief Justice

Sitting:          Alma L. López, Chief Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: June 18, 2008

AFFIRMED

           Andrew Jaramillo was convicted by a jury of aggravated robbery and sentenced to fifteen

years imprisonment. Jaramillo contends his counsel was ineffective by failing to discover Jaramillo

had prior convictions in New Mexico and allowing the details of those convictions to be introduced

during the punishment phase of the trial through Jaramillo’s own testimony. We affirm the trial

court’s judgment.
                                                                                        04-07-00701-CR


                                           BACKGROUND

       Ron McKinney was walking home from the River Center Mall. A gold car, in which

Jaramillo was a passenger, circled McKinney several times then parked behind a building. Two men

exited the car and approached McKinney on foot. Both men demanded McKinney’s belongings

while one of the men pointed a gun at McKinney. McKinney surrendered his wallet, his jewelry,

and the wallet and mobile phone of a friend, then fled the scene on foot. After McKinney reported

the robbery, the 911 operator broadcast McKinney’s description of the suspects. Patrol officers

spotted a gold car matching the description given by McKinney, and a chase ensued. Eventually,

the gold car stopped, and Jaramillo was taken from the backseat at gunpoint and arrested.

McKinney’s wallet was found in the car, and his silver cross was found in Jaramillo’s pocket.

McKinney identified Jaramillo as the one of the two men who robbed him.

       Before trial, Jaramillo signed a Written Sworn Motion for Community Supervision

“indicating that he had never been convicted of a felony in this or any other state.” At trial, the jury

convicted him of aggravated robbery. After conferring during the punishment phase, the State and

defense counsel stipulated to an affidavit evidencing two prior felony convictions against Jaramillo

in New Mexico. At that point, Jaramillo asked to testify so he could explain to the jury that he

thought the convictions had been removed from his record because he completed the requirements

of his plea bargain. Because the convictions were still on his record, Jaramillo abandoned his

application for community supervision. Following Jaramillo’s testimony, the judge explained to the

jury that the range of “punishment for aggravated robbery is confinement in the Texas Department

of Criminal Justice Institutional Division for life or any term of not more than 99 years or less than

5 years.” The jury assessed punishment at fifteen years confinement.


                                                  -2-
                                                                                      04-07-00701-CR


                                      STANDARD OF REVIEW

       A defendant is entitled to effective assistance of counsel under both the United States and

Texas Constitutions. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC.

ANN. art. 1.051 (Vernon Supp. 2007). To prove ineffective assistance of trial counsel on appeal, an

appellant must show: (1) counsel’s assistance fell below an objective professional standard; and (2)

counsel’s actions thereby prejudiced appellant’s defense. Strickland v. Washington, 466 U.S. 668,

687-88, 692 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Appellant must

prove, by a preponderance of the evidence, that but for counsel’s error, the outcome of his trial

would have been different. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

       In reviewing an ineffective assistance of counsel claim, we consider the totality of counsel’s

representation in light of the particular circumstances of the case and presume that counsel acted

competently and made decisions based on a reasonable trial strategy. See Ex parte Welborn, 785

S.W.2d 391, 393 (Tex. Crim. App. 1990). To rebut this presumption, the basis for any allegation

of ineffectiveness must be affirmatively founded in the record. Thompson, 9 S.W.3d at 813.

Counsel for the defendant has a duty to prepare a defense by independently investigating the facts

of the case as well the pertinent law. Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986).

“This duty includes investigating a defendant’s prior convictions.” Ex parte Langley, 833 S.W.2d

141, 143 (Tex. Crim. App. 1992). Although defense counsel may determine certain investigation

is strategically unnecessary, “a particular decision not to investigate must be directly assessed for

reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s

judgments.” Strickland, 466 U.S. at 691.




                                                 -3-
                                                                                       04-07-00701-CR


       It is very difficult for an appellant to establish ineffective assistance when the record does

not specifically mention counsel’s reasons for his actions, and appellant does not develop an

evidentiary record through a hearing on a motion for new trial. See Gibbs v. State, 7 S.W.3d 175,

179 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). Therefore, a “substantial risk of failure

accompanies an appellant’s claim of ineffective assistance of counsel on direct appeal.” Thompson,

9 S.W.3d at 813. However, “when no reasonable trial strategy could justify the trial counsel’s

conduct, counsel’s performance falls below an objective standard of reasonableness as a matter of

law, regardless of whether the record adequately reflects the trial counsel’s subjective reasons for

acting as she did.” Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). Even if appellant

is able to prove trial counsel’s performance was deficient, appellant must also affirmatively prove

that he was prejudiced by counsel’s actions. Thompson, 9 S.W.3d at 812. Appellant must

demonstrate a reasonable probability that the result of the proceeding would have been different if

trial counsel had acted professionally. Id. A reasonable probability is a probability sufficient to

undermine confidence in the trial’s outcome. Id.

                                            DISCUSSION

       Because Jaramillo did not file a motion for new trial, there is no record disclosing the reasons

trial counsel made the decisions he did. Consequently, counsel’s ineffectiveness, if any, is not

firmly founded in the record. See Thompson, 9 S.W.3d at 813 (indicating allegation must be firmly

founded in the record). Because we may not speculate about the reasons for counsel’s trial strategy,

Jaramillo has failed to rebut the presumption that counsel made trial decisions based on sound




                                                 -4-
                                                                                                    04-07-00701-CR


professional judgment.1 See Hernandez v. State, 198 S.W.3d 257, 270-71 (Tex. App.—San Antonio

2006, pet. ref’d). Although the silent record defeats the ineffective assistance claim raised by

Jaramillo, we briefly address how his claim fails because the record fails to establish either deficient

performance or prejudice. This brief analysis should not, however, preclude Jaramillo from

pursuing his claim through a writ of habeas corpus where a more complete record could change the

analysis and, possibly, the result. See Thompson, 9 S.W.3d at 814-15.

         Jaramillo’s counsel filed a Motion In Limine on October 6, 2007, asking the court to require

the State to refrain from commenting on any extraneous offenses not included in the indictment

unless and until a hearing was held outside the presence of the jury. About a year later and

approximately two months prior to trial, Jaramillo signed an affidavit requesting community

supervision “indicating that he had never been convicted of a felony in this or any other state.” No

prior convictions were introduced during the guilt-innocence phase of trial pursuant to the motion

in limine filed by Jaramillo’s counsel. During the recess between the guilt-innocence phase and the

punishment phase of trial, Jaramillo’s counsel learned about Jaramillo’s prior convictions from the

State. Jaramillo’s counsel conferred with the State and decided to stipulate to evidence of two prior

felony convictions in New Mexico. Following this stipulation, Jaramillo voluntarily testified “I just

hope you realize that I voluntarily bring this, you know what I mean—into evidence, because it’s

not something that I tried to hide from nobody. It’s just that I wasn’t real proud of that and I really

thought it had been taken off of my record.” Jones v. Barnes, 463 U.S. 745, 751 (1983). Although


         1
           Jaramillo makes a vague claim that his trial counsel should have filed a motion in limine to exclude any
information regarding Jaramillo’s civil trial against a San Antonio police officer. The basis for any allegation of
ineffectiveness must be affirmatively founded in the record. Thompson, 9 S.W.3d at 813. We agree with the State that
“[t]he record demonstrates that when the State elicited testimony regarding the suit[, trial] counsel objected and the
objection was sustained, which would have been required [even] with a motion in limine.” Jaramillo’s claim of
ineffectiveness, therefore, is not founded in the record. Id.

                                                         -5-
                                                                                     04-07-00701-CR


Jaramillo also described the two offenses to the jury, he twice apologized for his participation in

them. The jury assessed punishment at the lower end of the permitted range.

       Jaramillo contends his trial counsel should have investigated his criminal record to prevent

Jaramillo from “lying” in his affidavit requesting community supervision; however, there is no

evidence in the record that Jaramillo’s counsel had any reason to disbelieve Jaramillo regarding his

prior convictions. Although “ordinarily counsel should not blindly rely on the veracity . . . of his

client’s version of the facts,” McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996),

cert. denied, 519 U.S. 1119 (1997),

                   [t]he reasonableness of counsel’s actions may be determined or
           substantially influenced by the defendant’s own statements or actions.
           Counsel’s actions are usually based, quite properly, on informed strategic
           choices made by the defendant and on information supplied by the defendant.
           In particular, what investigation decisions are reasonable depends critically
           on such information. . . . And when a defendant has given counsel reason to
           believe that pursuing certain investigations would be fruitless or even
           harmful, counsel’s failure to pursue those investigations may not later be
           challenged as unreasonable.

Strickland, 466 U.S. at 691. Looking at the totality of the circumstances, Jaramillo’s own act of

signing a sworn affidavit indicating he had no prior convictions would have given his defense

counsel reasonable grounds for determining no further investigation into Jaramillo’s criminal record

was needed. Consequently, counsel’s ineffectiveness, if any, is not firmly founded in the record.

See Thompson, 9 S.W.3d at 813.

       Even assuming the evidence of Jaramillo’s prior convictions influenced the jury, we cannot

conclude that counsel’s failure to investigate Jaramillo’s criminal record resulted in prejudice to

Jaramillo. Thompson, 9 S.W.3d at 812. Given that Jaramillo was convicted of aggravated robbery

and was, in fact, not eligible for community supervision, the jury’s assessment of punishment at the



                                                -6-
                                                                                     04-07-00701-CR


lower end of the applicable range was commensurate with Jaramillo’s crime, and there exists no

reasonable probability that the outcome would have been different if trial counsel had investigated

Jaramillo’s criminal history. Id.

                                    CONCLUSION

       For the reasons provided above, we affirm the judgment of the trial court.



                                                      Alma L. López, Chief Justice

DO NOT PUBLISH




                                                -7-
