                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


 IVAN RODRIGUEZ AKA JESUS NAVA,                  §
                                                                 No. 08-09-00029-CR
                   Appellant,                    §
                                                                    Appeal from the
 v.                                              §
                                                             283rd Judicial District Court
                                                 §
 THE STATE OF TEXAS,                                           of Dallas County, Texas
                                                 §
                   Appellee.                                      (TC# F-0750471-T)
                                                 §


                                          OPINION

       Ivan Rodriguez appeals his conviction for aggravated robbery with a deadly weapon. A

jury found him guilty of first degree felony for his offense, and the trial judge sentenced him to

25 years’ imprisonment. Appellant challenges the conviction based on ineffective assistance of

counsel. We affirm.

       In March 2007, Ms. Tina Gongre heard an alarm go off and saw a red truck parked at

Underground Custom Body Works, a car body shop at the intersection of Longview and

Hunnicut in Dallas County, Texas (“Body Works” or “the shop”). The red truck had smashed

into the shop’s bay door. Appellant and another young Hispanic man rolled tire rims out of the

shop and loaded them into the bed of the truck. Ms. Gongre called 911. About that same time,

Mr. Victor Martinez, Body Works’ owner, arrived and parked his car to block the red truck.

Mr. Martinez drew his gun and ordered the young Hispanic man to his knees. Appellant, from

behind and at close range, shot at Mr. Martinez. Mr. Martinez returned fire, and wounded

Appellant. Law enforcement officers and an ambulance then arrived on the scene.
       Appellant was charged by indictment with the offense of aggravated robbery, and he

entered a plea of not guilty to the offense. At the end of the trial, the jury found Appellant guilty

of the charged offense. The court then assessed punishment for Appellant at twenty-five years’

confinement. Appellant filed a motion for new trial on the basis that “the verdict [was] contrary

to the law and the evidence,” and he also filed a notice of appeal.

       In his sole issue, Appellant contends he was denied effective assistance of counsel at trial

when trial counsel failed to request a lesser included offense instruction on aggravated assault.

Appellant contends his attorney rendered ineffective assistance of counsel by failing to ask the

court to provide a jury charge regarding a lesser included offense of aggravated assault. He

argues that evidence at trial showed he was guilty only of aggravated assault, and because

conviction of aggravated assault is a second degree offense, and punishment for it is lesser than

the first degree offense of aggravated robbery, he should have been afforded the opportunity to be

sentenced in accordance with the punishment range for a second degree offense.

       We review claims of ineffective assistance of counsel under the two-step analysis adopted

by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 2064, 80 L.Ed.2d 674 (1984). See Hernandez v. State, 988 S.W.2d 770, 771-72

(Tex.Crim.App. 1999). Under the first prong, the defendant must show that counsel’s

performance was deficient to the extent that counsel failed to function as the “counsel”

guaranteed by the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.

1994). Allegations of ineffective assistance must be firmly founded in the record, and the record

must affirmatively demonstrate the alleged ineffectiveness. Mallett v. State, 65 S.W.3d 59, 63

(Tex.Crim.App. 2001). The review of defense counsel’s representation is highly deferential and


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presumes that counsel’s actions fell within a wide range of reasonable professional assistance.

Id. at 63. When the record is silent as to counsel’s motivations for tactical decisions, the

appellant usually cannot overcome the strong presumption that counsel’s conduct is reasonable.

Id. In most cases on direct appeal, the record is not sufficiently developed and cannot adequately

demonstrate the motives behind counsel’s decisions. Id.

       Under the second prong, the defendant must establish that counsel’s deficient

performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Jackson,

877 S.W.2d at 771. Prejudice is established by a showing 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, 104 S.Ct. at 2068; Jackson, 877 S.W.2d at 771. The

prejudice analysis need not be addressed when the appellant fails to satisfy the first prong of the

analysis. See Mallett, 65 S.W.3d at 68.

       A trial counsel has no opportunity to explain his conduct if the defendant he represents

does not raise an allegation of ineffective assistance of counsel in a motion for new trial.

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). Without such opportunity, an

appellate court should not find the trial counsel’s performance deficient, unless the challenged

conduct was “so outrageous that no competent attorney would have engaged in it.” Id. at 392,

quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001). In this case, Appellant filed

a motion for new trial, but he did not raise any allegations of ineffective assistance of counsel in

the motion. Moreover, Appellant failed to point to any passage in the record, and he has not

provided this Court with any authority, from which we could conclude that the actions

complained of are so far outside the range of reasonable professional assistance as to be deemed


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deficient without the benefit of additional evidence. Therefore, Appellant has failed to carry his

burden under the first prong of the Strickland test on his ineffective assistance claim. See

Garcia, 57 S.W.3d at 440-41. Accordingly, Issue One is overruled.

       Having overruled Appellant’s issue presented for review, we affirm the trial court’s

judgment.


July 21, 2010
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)




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