                         NUMBER 13-12-00139-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JOSE MANUEL SALDIVAR GARCIA,                                             Appellant,

                                          v.

THE STATE OF TEXAS,                                                      Appellee.


                   On appeal from the 430th District Court
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION

              Before Justices Garza, Benavides, and Perkes
                Memorandum Opinion by Justice Perkes
      Appellant, Jose Manuel Saldivar Garcia, appeals his conviction of three counts of

aggravated sexual assault, a first-degree felony. See TEX. PENAL CODE ANN. § 22.021

(West 2011). Appellant pleaded nolo contendere and was sentenced to three twenty-

year terms (one for each offense), to be served concurrently in the Texas Department of
Criminal Justice, Institutional Division. By his sole issue, appellant argues his counsel

provided ineffective assistance by advising him that if he pleaded nolo contendere, he

would receive no more than five years’ confinement. We affirm.

                   I. FACTUAL AND PROCEDURAL BACKGROUND

      The record reflects that appellant answered “yes” when the trial court asked if he

understood the nature of the charges against him, that he had a conversation with his

lawyer about them, and that he understood the possible range of punishment. The

record also reflects that appellant answered “yes” when asked if he was satisfied with the

legal services provided to him.

                                  II. STANDARD OF REVIEW

      Appellant contends his trial counsel’s failure to advise him of the consequences of

his plea equated to ineffective assistance of counsel. Both the United States and Texas

Constitutions guarantee an accused the right to assistance of counsel. U.S. CONST.

amend. VI; TEX. CONST. art. I, § 10; see also TEX. CRIM. PROC. CODE ANN. art. 1.051

(West 2010). This right necessarily includes the right to reasonably effective assistance

of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prove an

ineffective assistance of counsel claim, a defendant must show by a preponderance of

the evidence that (1) counsel’s performance was so deficient that he was not functioning

as acceptable counsel under the Sixth Amendment, and (2) there is a reasonable

probability that, but for counsel’s error or omission, the result of the proceedings would

have been different. Strickland, 466 U.S. at 687–96; Thompson v. State, 9 S.W.3d 808,

812 (Tex. Crim. App. 1999). The defendant must overcome the strong presumption that


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the challenged action might have been sound trial strategy. Thompson, 9 S.W.3d at

813. We will not speculate to find trial counsel ineffective when the record is silent as to

counsel’s reasoning or strategy.                Godoy v. State, 122 S.W.3d 315, 322 (Tex.

App.—Houston [1st Dist.] 2003, pet. ref’d).

        When, as in this case, there is no evidentiary record developed at a hearing on a

motion for new trial, it is extremely difficult to show that trial counsel's performance was

deficient.1 See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); see also

Aldaba v. State, 382 S.W.3d 424, 431 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd).

If there is no hearing, or if counsel does not appear at the hearing, an affidavit from trial

counsel becomes almost vital to the success of an ineffective-assistance claim. Stults v.

State, 23 S.W.3d 198, 208–09 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). The

Texas Court of Criminal Appeals has stated that it should be a rare case in which an

appellate court finds ineffective assistance on a record that is silent as to counsel’s trial

strategy. See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005). On a

silent record, this Court can find ineffective assistance of counsel only if the challenged

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

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).




        1
            Generally, a post-conviction application for a writ of habeas corpus is a better vehicle than direct
appeal for presenting an ineffective-assistance claim. See TEX. CRIM. PROC. CODE ANN. art. 11.07(4).
(West 2007). “On direct appeal, the record is usually inadequately developed and cannot adequately
reflect the failings of trial counsel for an appellate court to fairly evaluate the merits of such a serious
allegation.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011) (quotation and citations omitted).
Unlike other claims rejected on direct appeal, claims of ineffective assistance of counsel rejected due to
lack of adequate information may be reconsidered on an application for a writ of habeas corpus. Id.

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                                                III. ANALYSIS

        Appellant fails to meet either prong of the Strickland test. The record is devoid of

any evidence that supports appellant’s factual assertions. “An appellate court will not

speculate about the reasons underlying defense counsel’s decisions. For this reason, it

is critical for an accused relying on an ineffective assistance of counsel claim to make the

necessary record in the trial court.” Stults, 23 S.W.3d at 208. With respect to the first

prong, the record does not support the assertion that counsel’s performance was

deficient. In fact, the record supports the opposite assertion, as appellant affirmed that

he was satisfied with the performance of counsel and that he had been informed of the

possible range of punishment by his counsel and the trial court. The second prong fails

because there is no record evidence2 that the result at trial would have been any different

but for counsel’s alleged deficiency.

        To succeed on an ineffective-assistance claim, appellant is required to meet his

burden of proof under both Strickland prongs, or the claim must fail. “Absent both

showings, an appellate court cannot conclude the conviction resulted from a breakdown

in the adversarial process that renders the result unreliable.” Ex parte Menchaca, 854

S.W.2d 128, 131 (Tex. Crim. App. 1993) (en banc).


        2
          Appellant attached an affidavit to his brief to substantiate his ineffective assistance claim, wherein
he claims that he was instructed to plead nolo contendere, so that he would receive five years’
incarceration. The affidavit asserts facts that are not in the appellate record. As an appellate court, we do
not consider facts that are not in the appellate record. See TEX. R. APP. P. 34.1; see also Pollan v. State,
612 S.W.2d 594, 596 (Tex. Crim. App. [Panel Op.] 1981).

        On November 7, 2012, the State filed a Motion to Strike appellant’s brief. In this motion, the State
asked the Court to strike appellant’s entire brief because an affidavit was attached that contained facts not
included the appellate record. In light of our decision not to consider the attached affidavit, we deny the
State’s motion to strike appellant’s brief as moot.

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       We overrule appellant's sole issue on appeal.

                                     IV. CONCLUSION

       We affirm the trial court’s judgment.



                                                   GREGORY T. PERKES
                                                   Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
15th day of August, 2013.




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