                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

 IGNACIO MUNOZ,                                  §
                                                                  No. 08-10-00150-CR
                   Appellant,                    §
                                                                    Appeal from the
 v.                                              §
                                                                  409th District Court
 THE STATE OF TEXAS,                             §
                                                                of El Paso County, Texas
                   Appellee.                     §
                                                                  (TC# 20090D03488)
                                                 §

                                          OPINION

       In two issues, Ignacio Munoz, Appellant, complains of prosecutorial misconduct and

ineffective assistance of counsel. We affirm.

                                         BACKGROUND

       Appellant agreed to consolidate into a single trial a charge of indecency with a child

involving J.D. with another charge of indecency with a child involving A.M. Thereafter, a jury was

empaneled. Appellant informed the trial court that he desired to plead guilty, and the trial court

admonished Appellant regarding his rights and the consequences of pleading guilty. Appellant’s

written admonishments regarding the entry of a plea of guilty and sex-offender registration was

admitted before the trial court without objection. Appellant then entered his open pleas of guilty to

each of the indecency charges.

       During the punishment phase of trial before the jury, J.D. and A.M. each testified to the acts

which Appellant had committed upon them. Each child and other witnesses testified regarding the

impact of the offenses upon the children’s lives. Both Appellant’s wife, a nurse, and Norma Reed,

a licensed clinical social worker and sex-offender treatment provider, presented favorable testimony
in Appellant’s defense. Although he had admittedly touched the private parts of J.D. no less than

five times and had touched A.M.’s private parts as well, Appellant testified that he would not re-

offend, was undergoing treatment, and had no sexual interest in children.1 The jury returned a

verdict of guilty on each indictment and sentenced Appellant to concurrent terms of twenty years’

imprisonment on each count.

                                                 DISCUSSION

         In his first issue, Appellant complains that he was denied a fair and impartial trial because

the State allegedly engaged in prosecutorial misconduct by using inflammatory words and

statements. Appellant specifically complains that the State’s use of the terms “molester,” “child

molester,” “sexual predator,” and “molested” in the punishment phase of trial was clearly calculated

to inflame the minds of the jury and was of such character to suggest the impossibility of

withdrawing the impression produced by the statements. He also complains that the State elicited

evidence that allegedly suggested Appellant had committed extraneous criminal offenses that were

not part of the charged offense. In his second issue, Appellant contends he was denied the effective

assistance of counsel because trial counsel failed to object to the State’s complained-of conduct as

raised in Issue One.

         We first consider whether Appellant has preserved his prosecutorial misconduct complaints

for appeal. To preserve error for prosecutorial misconduct, an appellant must: (1) make a timely and

specific objection; (2) request an instruction to disregard the matter improperly placed before the

jury; and (3) move for mistrial. Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993);



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           J.D. testified that Appellant inappropriately touched him five to six times when J.D. was between nine
and ten-years old.

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Perkins v. State, 902 S.W.2d 88, 96 (Tex. App. – El Paso 1995, no pet.) (appellant’s failure to object

on grounds of prosecutorial misconduct waived alleged error). Our review of the State’s closing

punishment arguments shows that Appellant did not object to the State’s closing punishment

arguments. Therefore, Appellant has failed to preserve the alleged error for appellate review. TEX .

R. APP . P. 33.1(a)(1)(2). Moreover, we are unpersuaded by Appellant’s contention that the

unpreserved errors so undermined the reliability of the fact-finding process, transformed the trial into

a farce and mockery of justice, and deprived Appellant of fundamental fairness and due process of

law that a new trial is necessary. Compare Berger v. United States, 295 U.S. 78, 84, 88, 55 S.Ct.

629, 79 L.Ed. 1314 (1935); Rogers v. State, 725 S.W.2d 350, 351-61 (Tex. App. – Houston [1st

Dist.] 1987, no pet.). Issue One is overruled.

         In Issue Two, Appellant complains that he was denied the effective assistance of counsel

because counsel failed to object to the State’s alleged misconduct during the punishment phase of

his trial.

                                         Standard of Review

         To prevail on a claim of ineffective assistance of counsel, a defendant must show that: (1)

defense counsel’s performance fell below an objective standard of reasonableness, and (2) there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 694, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984); Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App. 2005). Prong

One requires a defendant to show that trial counsel’s performance was so deficient that the

representation fell below the objective standard of reasonableness. Strickland, 466 U.S. at 687-88;

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Prong Two requires a defendant to


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show that counsel’s deficient performance prejudiced his defense. Strickland, 466 U.S. at 687;

Torres v. State, 141 S.W.3d 645, 657 (Tex. App. – El Paso 2004, pet. ref’d). Thus, a defendant must

show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. Strickland, 466 U.S. at 694; Jackson v. State, 877 S.W.2d

768, 771 (Tex. Crim. App. 1994). A probability sufficient to undermine confidence in the outcome

is a reasonable probability. Strickland, 466 U.S. at 694; Jackson, 877 S.W.2d at 771.

        A defendant bears the burden of establishing both Strickland prongs by a preponderance of

the evidence. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). A defendant’s failure

to meet his burden as to either prong will defeat the ineffectiveness claim. Strickland, 466 U.S. at

697; Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009), cert. denied, 130 S.Ct. 3411

(2010), citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

        Our review begins with the strong presumption that counsel’s conduct fell within the wide

range of reasonable professional service, and our review of counsel’s performance is highly

deferential. Strickland, 466 U.S. at 689; see Andrews, 159 S.W.3d at 101. Thus, a defendant must

overcome the presumption that, under the circumstances, the challenged action might be considered

sound trial strategy. Strickland, 466 U.S. at 689.

        A claim of ineffective assistance must be firmly founded in the record, and the record must

affirmatively demonstrate that the claim has merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.

Crim. App. 2005). Because a silent record provides no explanation for counsel’s actions, the record

in a direct appeal is usually insufficient to show that counsel’s representation was so deficient or so

lacking in tactical or strategic decision-making as to overcome the presumption that counsel’s

conduct was professional and reasonable. Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim. App.


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2008); Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Counsel should

ordinarily be given an opportunity to explain his actions before being deemed unprofessional or

incompetent. Rylander, 101 S.W.3d at 111; Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App.

2002). Absent this opportunity, we should not find counsel’s performance deficient unless the

challenged conduct was “so outrageous that no competent attorney would have engaged in it.”

Goodspeed, 187 S.W.3d at 392, quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.

2001). As the Texas Court of Criminal Appeals has repeatedly explained, an application for writ of

habeas corpus is typically the more appropriate vehicle for raising claims of ineffective assistance

of counsel. See, e.g. Rylander, 101 S.W.3d at 110-11.

       The trial record does not provide any information regarding counsel’s reasons for his inaction

in this case. Appellant filed a motion for new trial in which he did not raise nor present a record

showing ineffective assistance of counsel. Our examination of the record as it exists does not reveal

that counsel’s allegedly deficient performance was “so outrageous that no competent attorney would

have engaged in it.” Goodspeed, 187 S.W.3d at 392. Consequently, the trial and post-trial record

before us is silent and fails to provide the reasons for counsel’s inaction. Based upon the totality of

the record, we are unable to conclude that Appellant has met his burden of establishing that trial

counsel’s performance fell below an objective standard of reasonableness. Because we are unable

to conclude that Appellant has satisfied the first prong of Strickland, Issue Two is overruled.

Strickland, 466 U.S. at 697; Williams, 301 S.W.3d at 687.

       The trial court certified Appellant’s right to appeal in this case, but the amended certification

does not include the information required by Rule 25.2(d). See TEX . R. APP . P. 25.2(d). The

certification is defective, and has not been corrected by Appellant’s attorney, or the trial court. To


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remedy this defect, this Court ORDERS Appellant’s attorney, pursuant to TEX . R. APP . P. 48.4, to

send Appellant a copy of this opinion and this Court’s judgment, to notify Appellant of his right to

file a pro se petition for discretionary review, and to inform Appellant of the applicable deadlines.

See TEX . R. APP . P. 48.4, 68. Appellant’s attorney is further ORDERED, to comply with all of the

requirements of TEX . R. APP . P. 48.4.

                                          CONCLUSION

       The trial court’s judgment is affirmed.



                                              GUADALUPE RIVERA, Justice
October 26, 2011

Before McClure, C.J., Rivera, J., and Chew, C.J., (Senior)

(Do Not Publish)




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