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                                  MEMORANDUM OPINION

                      Nos. 04-08-00765-CR; 04-08-00766-CR & 04-08-00767-CR

                                   Philipe PEREZ a/k/a Mario Perez,
                                              Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                     From the 399th Judicial District Court, Bexar County, Texas
                   Trial Court No. 2006CR5055B; 2006CR5056B & 2006CR5057B
                       Honorable Juanita A. Vasquez-Gardner, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: September 9, 2009

AFFIRMED

           Philipe Perez a/k/a Mario Perez pled no contest to multiple counts of aggravated robbery with

a deadly weapon. On appeal, Perez contends he “was not given the full hearing to which he was

entitled on his attorney’s motion to withdraw.” Alternatively, in the event this court holds that his

first issue is not preserved, Perez contends trial counsel was ineffective because he “failed to call the
                                                         04-08-00765-CR; 04-08-00766-CR & 04-08-00767-CR



conflict [between Perez and trial counsel] to the attention of the trial court earlier, or failed to

adequately request a hearing.” We overrule Perez’s issues and affirm the trial court’s judgments.

        On July 30, 2008, the trial court held a hearing and found the evidence sufficient to support

Perez’s plea. After the trial court set the sentencing hearing for September 8, 2008, in order to obtain

a pre-sentence investigation report which trial counsel requested, trial counsel reminded the trial

court on the record that his client had made a motion to fire him “the other day when we were in

court pursuing the pretrial negotiations.” Trial counsel stated that another motion had been filed

with the same argument and requested a ruling on the record. The trial judge responded that she

recalled the motion was based on Perez’s desire to hire another attorney or obtain appointed counsel

because of some conflicts with trial counsel. The trial court stated that the motion was denied

because of the ages of the cases given that the offense dates were April 9, 2006, and the fact that

Perez’s case was number one on the docket. No objection was made regarding the need for a “full”

hearing on the motion; therefore, Perez’s first issue is not preserved for our review. See TEX . R. APP .

P. 33.1.

        To establish ineffective assistance of counsel, a defendant must show both that trial counsel’s

performance was deficient and that the deficient performance prejudiced him. Strickland v.

Washington, 466 U.S. 668, 694 (1984); Badillo v. State, 255 S.W.3d 125, 129 (Tex. App.—San

Antonio 2008, no pet.). We presume trial counsel acted within the proper range of reasonable and

professional assistance and that his trial decisions were based on sound strategy. Salinas v. State,

163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Badillo, 255 S.W.3d at 129. To overcome this

presumption, allegations of ineffectiveness must be firmly founded in the record, and the record must




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                                                         04-08-00765-CR; 04-08-00766-CR & 04-08-00767-CR



affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex.

Crim. App. 1999); Badillo, 255 S.W.3d at 129.

        “A substantial risk of failure accompanies an appellant’s claim of ineffective assistance of

counsel on direct appeal.” Thompson, 9 S.W.3d at 813. “Rarely will a reviewing court be provided

the opportunity to make its determination on direct appeal with a record capable of providing a fair

evaluation of the merits of the claim involving such a serious allegation.” Id. “In the majority of

instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the

failings of trial counsel.” Id. at 813-14. A proper record is best developed in a habeas corpus

proceeding or in a motion for new trial hearing. Salinas v. State, 274 S.W.3d 256, 261 (Tex.

App.—Houston [14th Dist.] 2008, pet. ref’d). We will not speculate as to the basis for counsel’s

actions; thus a silent record on the reasoning behind counsel’s actions is sufficient to overrule a

claim of ineffective assistance on direct appeal. Badillo, 255 S.W.3d at 129.

        In this case, no record was developed at a hearing on a motion for new trial to explain the

reason trial counsel did not object to not being given a “full” hearing on the motion to withdraw.

The record does reflect that trial counsel brought the alleged conflict to the trial court’s attention on

two occasions and obtained a ruling. The record does not, however, provide any insight into the

reason trial counsel did not move to withdraw or request a hearing earlier. Because we cannot

speculate regarding the reasons for trial counsel’s decisions, we overrule Perez’s second issue. We

note, however, that our opinion does not preclude Perez from seeking habeas relief in regard to this

claim. See Thompson, 9 S.W.3d at 814-15.




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                                                   04-08-00765-CR; 04-08-00766-CR & 04-08-00767-CR



     The trial court’s judgments are affirmed.

                                                    Marialyn Barnard, Justice



DO NOT PUBLISH




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