                                    MEMORANDUM OPINION
                                             No. 04-10-00066-CR

                                               Julian GARCIA,
                                                   Appellant

                                                        v.

                                            The STATE of Texas,
                                                  Appellee

                     From the 81st Judicial District Court, La Salle County, Texas
                                 Trial Court No. 09-01-00005-CRL
                             Honorable Donna S. Rayes, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: December 8, 2010

AFFIRMED

           This appeal arises from the conviction of Julian Garcia for the aggravated sexual assault

of a child, C.C. 1 Garcia argues that he received ineffective assistance of counsel because his

appointed trial and appellate counsel: (1) neglected to ensure a hearing was held on his motion

for new trial; (2) failed to diligently investigate prospective defense witnesses and call them to

testify; (3) failed to raise a Batson objection to the prosecution’s use of nine of its ten peremptory

1
  To protect the privacy of the victim in this case, we refer to the victim by her initials. See TEX. FAM. CODE ANN.
§ 109.002(d) (West 2008).
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strikes on Hispanic jurors, and used all of the defense’s own peremptory strikes to exclude white

jurors; and (4) failed to object to the State’s tactics during closing arguments. We affirm the

judgment of the trial court.

                                          BACKGROUND

       On April 18, 2008, C.C. spent the night at her friend’s house. C.C. stayed the night

because C.C., her friend, and several other girls were planning on travelling to Laredo the next

morning to shop for Quinceañera dresses. During the night, C.C. awoke to find Julian Garcia,

her friend’s older brother, sitting by her legs. Julian mumbled something into C.C.’s ear, but she

did not understand what he said. He then grabbed C.C.’s arm and pulled her into the kitchen

where he asked her to have sex. C.C. ran to lock herself in the restroom, but Julian grabbed her

hair and pulled her into another room. Julian then removed C.C.’s clothes, held his hand over

her mouth, and had sex with her. Though C.C. did not mention what had happened the following

day, she later outcried to a school administrator.

       Julian was charged by indictment with aggravated sexual assault of a child. After a jury

trial, Julian was convicted and sentenced to fifteen years and one day in prison. Julian’s sole

issue on appeal is that he received ineffective assistance of counsel.

                               INEFFECTIVE ASSISTANCE OF COUNSEL

       Establishing ineffective assistance of counsel requires an appellant to show (1) a deficient

performance by his trial counsel (2) that prejudiced the defense. Strickland v. Washington, 466

U.S. 668, 688 (1984); Garza v. State, 213 S .W.3d 338, 347 (Tex. Crim. App. 2007). Counsel’s

performance is deficient if his representation falls below an objective standard of professional

norms. Strickland, 466 U.S. at 688; Garza, 213 S.W.3d at 347–48. The defense is prejudiced if

there is a reasonable probability that but for trial counsel’s errors, the outcome of the trial would



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have been different. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002); Ruiz v. State,

293 S.W.3d 685, 690 (Tex. App.—San Antonio 2009, pet. ref’d).

       Because there is a strong presumption that trial counsel’s decisions and actions were

motivated by sound strategy, a reviewing court presumes that trial counsel provided effective

assistance. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65

S.W.3d 59, 63 (Tex. Crim. App. 2001).          To overcome this presumption, an appellant’s

“allegation of ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999).

       We review trial counsel’s conduct with great deference, especially where the record does

not demonstrate the reasons for trial counsel’s decisions and actions. See Goodspeed v. State,

187 S.W.3d 390, 392 (Tex. Crim. App. 2005). We ordinarily afford trial counsel an opportunity

to explain his actions before denouncing his assistance as ineffective. Rylander v. State, 101

S.W.3d 107, 111 (Tex. Crim. App. 2003). Direct appeal is usually not an effective means to

raise an ineffective assistance of counsel claim because the record is generally undeveloped.

Thompson, 9 S.W.3d at 813–14. Trial counsel’s performance will be deemed sufficient if any

strategy can be ascribed to his actions or decisions, and his performance will be found deficient

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

Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).

A. Hearing on the Motion for New Trial

       After the jury sentenced Julian, his appointed appellate counsel filed a motion for new

trial, and the court set a hearing on the motion for January 14, 2010. On January 13, appointed

appellate counsel filed an application for a bench warrant to permit Julian to testify at the



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January 14 hearing. The trial judge did not sign a bench warrant. Garcia argues that his

appointed appellate counsel’s actions fell below an objective standard of professional norms

when he failed to ensure: (1) that Julian would be bench warranted in time for the hearing; and

(2) that the trial court held a hearing on his motion for new trial.

       Because the record does not affirmatively demonstrate that any lack of a hearing or the

trial court’s failure to sign a bench warrant was attributable to Julian’s appellate counsel, nothing

evidences an action or inaction by appellate counsel that fell below an objective standard of

professional norms. See Strickland, 466 U.S. at 688; Garza, 213 S.W.3d at 347–48; Thompson,

9 S.W.3d at 813–14.

B. Failure to Diligently Investigate Prospective Witnesses & Call Them to Testify

       Two affidavits from Devonna Nieto and Alyssaliel Garcia were attached to Julian’s

motion for new trial. Both witnesses stated in their affidavits that two weeks after C.C. was

attacked, she told them that “nothing happened” between her and Julian. Julian argues that his

trial counsel’s failure to call these witnesses to testify at trial fell below an objective standard of

professional norms.

       An ineffective assistance of counsel claim may not be predicated upon a failure to call

witnesses unless the appellant shows that those witnesses were available. King v. State, 649

S.W.2d 42, 44 (Tex. Crim. App. 1983). Neither of the witnesses’ affidavits indicates that they

were available to testify during trial. In fact, the basis for Julian’s motion for new trial was that,

after a diligent pre-trial investigation, these newly discovered witnesses could not be found.

Moreover, the record is silent with regard to the investigation trial counsel had undertaken, and

the reasons he may have had for not calling the two witnesses to testify. Thompson, 9 S.W.3d at

813 (ineffective assistance claims must be firmly founded in the record). Accordingly, this



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allegation of ineffectiveness is not firmly founded in the record. See id. at 813–14; King, 649

S.W.2d at 44.

C. Improper Use of Peremptory Strikes

       Julian argues that his trial counsel was ineffective by failing to raise a Batson objection to

the State’s use of nine of its ten peremptory strikes on Hispanic jurors. Garcia also argues that

his trial counsel was ineffective for using all of his peremptory strikes on white jurors. Again,

the record is silent with regard to the reasons for trial counsel’s failure to object to the State’s use

of peremptory strikes, and the reasons for his own use of peremptory strikes. Thompson, 9

S.W.3d at 813. Trial counsel could have decided against raising a Batson objection because,

despite both sides’ use of peremptory challenges, seven of the twelve jurors were Hispanic.

Moreover, trial counsel could have had non-discriminatory reasons for his use of peremptory

strikes. Thus, these allegations of ineffectiveness are also not firmly founded in the record. See

id. at 813–14.

D. Failure to Object to the State’s Closing Argument

       Finally, Julian argues that his trial counsel’s failure to object to the State’s tactics during

closing argument constitutes ineffective assistance. Specifically, Julian complains that trial

counsel failed to object when the State initially made a very short closing argument, and made

the bulk of its argument after defense counsel presented his closing argument. Assuming,

without deciding, that the State’s closing argument was improper, trial counsel’s failure to object

could have been a tactical decision based on his belief that Julian’s case would be more strongly

presented as the first, more in-depth analysis of the evidence presented at trial. See Taylor v.

State, 947 S.W.2d 698, 703–04 (Tex. App.—Fort Worth 1997, pet. ref’d) (holding that not

objecting during the State’s closing argument can be a tactical decision). Because the record



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does not indicate the reason that trial counsel failed to object to the brevity of the State’s initial

closing argument, Julian’s allegation of ineffectiveness is not firmly founded in the record, and

does not overcome the strong presumption of effective assistance. See Salinas, 163 S.W.3d at

740; Thompson, 9 S.W.3d at 813–14.

                                           CONCLUSION

       Because none of Garcia’s allegations of ineffective assistance of counsel are firmly

founded in the record, we affirm the judgment of the trial court.


                                                   Rebecca Simmons, Justice

DO NOT PUBLISH




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