                             NUMBER 13-11-00301-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

TIMOTHY MENDOZA A/K/A “TIMO”,                                                 Appellant,

                                             v.

THE STATE OF TEXAS,                                                           Appellee.


                     On appeal from the 24th District Court
                          of Victoria County, Texas.


                          MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Rodriguez and Garza
             Memorandum Opinion by Justice Rodriguez
       Appellant Timothy Mendoza a/k/a "Timo" challenges his convictions for murder

and engaging in organized criminal activity.      See TEX. PENAL CODE ANN. § 19.02(b)

(West 2011), § 71.02(a)(1) (West Supp. 2011). By two issues, Mendoza argues that:

(1) the trial court erred in denying his motion for mistrial; and (2) he received ineffective

assistance of counsel at trial. We affirm.
                                     I. Background

        Mendoza was indicted for murder and engaging in organized criminal activity in

connection with his alleged participation in the stabbing death of John Gilbert Licon in

January 2006. Mendoza pleaded not guilty to both counts, and his case was tried to a

jury.   The State introduced the testimony of fourteen witnesses at trial; Mendoza

presented no witnesses. During the guilt-innocence phase of the trial, the State also

played a tape recording of Mendoza's statement to the police. Although the State made

assurances to Mendoza's counsel that discussions of Mendoza's prior convictions and

prison time had been redacted from the taped statement, the audio played to the jury

included conversation between Mendoza and the police about his prior incarcerations.

After the close of evidence and arguments by counsel, the jury returned a guilty verdict as

to both counts.

        A day after the jury returned its verdict but before the hearing on punishment

commenced, Mendoza filed a motion for mistrial and a motion for new trial, arguing that

the improperly redacted tape that contained references to Mendoza's time in prison

prejudiced the jury. The trial court denied both motions. The trial court then held a

hearing on punishment and assessed Mendoza's sentences at life imprisonment for both

counts, with the sentences ordered to run concurrently. This appeal followed.

                                  II. Motion for Mistrial

        By his first issue, Mendoza argues that the trial court erred in denying his motion

for mistrial because the State's failure to redact the portions of Mendoza's taped

statement regarding his prison time incurably prejudiced the jury. In general, we review

a trial court's ruling on a motion for mistrial for abuse of discretion. Wead v. State, 129

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S.W.3d 126, 129 (Tex. Crim. App. 2004) (citations omitted). But to preserve error, the

motion for mistrial must be timely and specific. See Griggs v. State, 213 S.W.3d 923,

(Tex. Crim. App. 2007) (citing Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004));

see also TEX. R. APP. P. 33.1(a). "A motion for mistrial is timely only if it is made as soon

as the grounds for it become apparent." Griggs, 213 S.W.3d at 927 (citations omitted);

see Wilkerson v. State, 881 S.W.2d 321, 326 (Tex. Crim. App. 1994) (citation omitted).

Here, Mendoza failed to object and move for a mistrial when the grounds for the motion

became apparent, i.e., at the time the State played the unredacted audio tape of

Mendoza's statement to police. Mendoza's motion for mistrial, filed a full day after the

jury returned its guilty verdict, was too late to preserve any error in the trial court's

admission of the tape. Mendoza's first issue is overruled.

                         III. Ineffective Assistance of Counsel

       By his second issue, Mendoza argues that he received ineffective assistance of

counsel that prejudiced his case because his trial counsel failed to adequately investigate

the case and "create any reasonable trial strategy" and, as a result, the State's evidence

appeared to the jury to be "overwhelming."

       To establish ineffective assistance of counsel, Mendoza must show that: (1) his

attorney's representation fell below an objective standard of reasonableness; and (2)

there is a reasonable probability that, but for his attorney's errors, the result of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 684

(1984); Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.).

Our review of counsel's representation is highly deferential, and we will find ineffective

assistance only if Mendoza rebuts the strong presumption that his counsel's conduct fell

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within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at

689; Jaynes, 216 S.W.3d at 851. Mendoza must prove ineffective assistance of counsel

by a preponderance of the evidence. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999) (citing Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984)).

To prove that counsel's performance fell below the reasonableness standard, "the record

must contain evidence of counsel's reasoning, or lack thereof." Moreno v. State, 1

S.W.3d 846, 865 (Tex. App.—Corpus Christi 1999, pet. ref'd).

       Usually, the trial record will not be sufficient to establish an ineffective assistance

of counsel claim. Thompson, 9 S.W.3d at 813–14; Kemp v. State, 892 S.W.2d 112, 115

(Tex. App.—Houston [1st Dist.] 1994, pet. ref'd). This is true because, normally, a

record is silent with regard to counsel's decision-making processes, and therefore,

appellant often cannot rebut the presumption that counsel's performance was the result of

sound or reasonable trial strategy. Strickland, 466 U.S. at 688; Stafford v. State, 813

S.W.2d 503, 506 (Tex. Crim. App. 1991); see Jaynes, 216 S.W.3d at 855. In the case of

such a silent record, "the challenged conduct must be 'so outrageous that no competent

attorney would have engaged in it.'" Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim.

App. 2007) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).

       Here, the details of trial counsel's investigation and other preparation for trial, or

alleged lack thereof, are not apparent from the trial record. The trial record in this case is

undeveloped as to the alleged failings of Mendoza's trial counsel and does not contain

sufficient information to permit us to fairly evaluate the merits of Mendoza's ineffective

assistance allegations on appeal. See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim.

App. 2007); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Neither can we

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conclude from the record before us that trial counsel's actions were so outrageous that no

competent attorney would have engaged in them. See Roberts, 220 S.W.3d at 533.

       Without evidence in the record of trial counsel's decision-making process and

strategy, we cannot conclude that Mendoza has overcome the strong presumption that

his trial counsel provided professional, objectively reasonable assistance.          See

Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. Because Mendoza did not

establish that his trial counsel's performance fell below an objectively reasonable

standard, he has not met the first prong of Strickland. See Jaynes, 216 S.W.3d at 855.

His second issue is overruled.

                                    IV. Conclusion

       We affirm the judgments of the trial court.


                                                              NELDA V. RODRIGUEZ
                                                              Justice

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

Delivered and filed the
15th day of June, 2012.




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