                           NUMBER 13-10-501-CR

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG

JAVIER ALANIZ,                                                        Appellant,

                                       v.

THE STATE OF TEXAS,                                                   Appellee.


                  On appeal from the 148th District Court
                        of Nueces County, Texas.


                       MEMORANDUM OPINION
               Before Justices Rodriguez, Vela, and Perkes
                  Memorandum Opinion by Justice Vela
      Following a trial to the bench, appellant, Javier Alaniz, was convicted of

aggravated assault with a deadly weapon, a motor vehicle. See TEX. PENAL CODE ANN.
§§ 22.01(a)(2), 22.02(a)(2) (West Supp. 2010). During the punishment hearing, the trial

court found appellant had two prior felony convictions and assessed punishment at

twenty-five years' imprisonment. In four issues, appellant challenges the sufficiency of

the evidence to support his conviction, and complains of ineffective assistance of

counsel. We affirm.

                                 I. FACTUAL BACKGROUND

       Angie Loredo and appellant met in 2007 and began a dating relationship. On the

night of June 21, 2009, appellant was at Loredo's house and began accusing her of

cheating on him. When she went into her room, he jumped on her and grabbed her by

the face. After this incident, they broke up.

       The next evening, appellant called Loredo and asked her to pick him up at his

mother's house; however, she refused his request. Fearing he would come to her home,

she put her six-year-old daughter in her van and started driving to her mother's house.

While Loredo waited for a traffic light to change, appellant, who was driving a Dodge Ram

truck, pulled up on the right side of her vehicle. He started hitting her window and telling

her to get out of the car. She ignored him, and when the light changed, she drove away.

He followed her and pulled up on her right side. She testified, "And then he kept going

and then he turn [sic] around and then that's when he struck me . . . [with the] vehicle."

She stated that when appellant hit her car, "[I]t kind of made me go to the other side" and

"I was scared and I was worried, because I had my daughter in the car with me." After

the impact, Loredo parked her vehicle, and appellant parked his truck near her vehicle.

When appellant exited his truck, she asked him, "'How can you do this to me? If you say


                                             2
you love me, how can you do this to me?'" He replied, "'Because you were cheating on

me.'" After this exchange, appellant left the scene.

      When the prosecutor asked Loredo, "Mr. Alaniz [appellant] hit you with his vehicle

or the vehicle he was driving; is that correct?", she said, "Yes." She testified appellant

caused "close to" $1,800 in damages to her vehicle.

      Detective James Lerma, who investigated this incident, testified Loredo's vehicle

had damage to the front-right quarter panel on the passenger side. When the prosecutor

asked him, "And is that consistent with what Ms. Loredo told you about the incident that

took place?" he said, "Yes, sir." Referring to a Dodge Ram truck, the prosecutor asked

Detective Lerma, "[H]ave you ever seen it used as a deadly weapon?" To this, he said,

"Yes, I have, sir." He stated that Allen Samuels estimated the damage to Loredo's

vehicle at $1,884.

      Appellant did not testify during the guilt-innocence phase of this trial, and the

defense rested without calling any witnesses.

                                      II. DISCUSSION

A. Sufficiency of the Evidence

      We address the fourth issue first wherein appellant contends the evidence is

legally insufficient to support his conviction. Appellant argues the State: (1) failed to

prove he threatened Loredo with imminent bodily injury; and (2) failed to prove the vehicle

he was driving was exhibited as a deadly weapon.




                                            3
       1. Standard of Review

       ―When reviewing a case for legal sufficiency, we view all of the evidence in the light

most favorable to the verdict and determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.‖ Winfrey v. State,

323 S.W.3d 875, 878–79 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307,

319 (1979)).    Accordingly, ―we ‗determine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence when

viewed in the light most favorable to the verdict.‘‖ Id. at 879 (quoting Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Hooper v. State, 214 S.W.3d 9,

16–17 (Tex. Crim. App. 2007)). ―It has been said quite appropriately, that ‗[t]he appellate

scales are supposed to be weighted in favor of upholding a trial court‘s judgment of

conviction, and this weighting includes, for example, the highly deferential standard of

review for legal-sufficiency claims.‘‖ Id. (quoting Haynes v. State, 273 S.W.3d 183, 195

(Tex. Crim. App. 2008) (Keller J., dissenting) (citing Jackson, 443 U.S. at 319)). ―We

must therefore determine whether the evidence presented to the jury, viewed in the light

most favorable to the verdict, proves beyond a reasonable doubt that appellant‖

committed the crime for which the jury found him guilty. See id. ―It is the obligation and

responsibility of appellate courts ‗to ensure that the evidence presented actually supports

a conclusion that the defendant committed the crime that was charged.‘‖ Id. at 882

(quoting Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)). In addition,

―‘[i]f the evidence at trial raises only a suspicion of guilt, even a strong one, then that

evidence is insufficient [to convict].‘‖ Id. (quoting Urbano v. State, 837 S.W.2d 114, 116


                                             4
(Tex. Crim. App. 1992)), superseded in part on other grounds, Herrin v. State, 125

S.W.3d 436, 443 (Tex. Crim. App. 2002).

       In this case, the indictment alleged, in relevant part, that appellant "intentionally or

knowingly threaten[ed] Angie Loredo with imminent bodily injury by STRIKING HER

VEHICLE, and did then and there use or exhibit a deadly weapon, to-wit: A MOTOR

VEHICLE, during the commission of said assault, . . . ." (emphasis in original). Section

22.01 of the penal code sets out three separate and distinct assaultive crimes, one of

which is relevant to the present discussion: ―(a) A person commits an offense if the

person: . . . (2) Intentionally or knowingly threatens another with imminent bodily injury .

. ." Id. § 22.01(a)(2). Section 22.02 of the penal code defines the crime of aggravated

assault as being an assault under section 22.01, and the person ―(1) causes serious

bodily injury to another, including the person‘s spouse; or (2) uses or exhibits a deadly

weapon during the commission of the assault.‖ Id. § 22.02(a)(1), (2). Because the

victim in this case, Angie Loredo, did not suffer any injuries during the collision, we

evaluate the facts under subsection 2 of section 22.02(a).

       A deadly weapon is "anything that in the manner of its use or intended use is

capable of causing death or serious bodily injury."         Id. § 1.07(a)(17).    In Ex parte

McKithan, the court of criminal appeals stated that "[a] motor vehicle, in the manner of its

use or intended use, is clearly capable of causing death or serious bodily injury and

therefore can be a deadly weapon." 838 S.W.2d 560, 561 (Tex. Crim. App. 1992).

"Specific intent to use a motor vehicle as a deadly weapon is not required." Drichas v.

State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005).


                                              5
       In McCain v. State, the court of criminal appeals recognized that placing the word

"capable" in the definition of a deadly weapon "enables the statute to cover conduct that

threatens deadly force, even if the actor has no intention of actually using deadly force."

McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). In Drichas, the court of

criminal appeals, referring to the deadly weapon statute, said that "[c]apability is

evaluated based on the circumstances that existed at the time of the offense." Drichas,

175 S.W.3d at 799. In that case, the defendant evaded police in his vehicle and led them

on a fifteen-mile chase. The court of appeals found the evidence insufficient to support a

finding that a vehicle was a deadly weapon because, although the manner the defendant

used his vehicle was sufficient to render it a deadly weapon, the State failed to show

actual danger. Id. at 797. The court of criminal appeals disagreed with the lower court

and held that the manner in which the defendant used his vehicle made it capable of

causing death or serious bodily injury. Id. at 798. The court agreed that while the

danger posed "must be actual, and not simply hypothetical, the statute itself does not

require pursuing police officers or other motorists to be in a zone of danger, take evasive

action, or require appellant to intentionally strike another vehicle to justify a deadly

weapon finding".    Id. at 799.   The court of criminal appeals stated that the deadly

weapon "statute specifically pertains to motor vehicles, so a deadly weapon finding is

appropriate on a sufficient showing of actual danger, such as evidence that another

motorist was on the highway at the same time and place as the defendant when the

defendant drove in a dangerous manner." Id.




                                            6
       The court of criminal cppeals in Tucker v. State re-emphasized the breadth of

McCain when it explained,

       The placement of the word "capable" is crucial to understanding this
       method of determining deadly weapon status. The State is not required to
       show that the "use or intended use causes death or serious bodily injury"
       but that the "use or intended use is capable of causing death or serious
       bodily injury."

Tucker v. State, 274 S.W.3d 688, 691 (Tex. Crim. App. 2008) (emphasis in original)

(footnotes omitted). Because appellant used a motor vehicle, i.e., a Dodge Ram truck, to

assault Loredo, we will evaluate the truck's capability of causing death or serious bodily

injury based on the circumstances as they existed at the time the offense was committed.

       Loredo testified appellant, who was driving a Dodge Ram truck, pulled up on her

right side "[a]nd then he kept going and then he turn [sic] around and then that's when he

struck me . . . [with the] vehicle." She stated that when appellant hit her car, "[I]t kind of

made me go to the other side" and "I was scared and I was worried, because I had my

daughter in the car with me." The circumstances surrounding the collision show that

appellant intentionally used the vehicle he was driving to hit the vehicle Loredo was

driving. When Loredo asked appellant why he did this to her he said, "'because you

were cheating on me.'" "Motive is a significant circumstance indicating guilt." Guevara

v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).

       Thus, appellant's act of using the vehicle he was driving to hit Loredo's vehicle

supports the trial court's finding that appellant's vehicle, in the manner of its use or

intended use, was capable of causing death or serious bodily injury. See McCain, 22

S.W.3d at 503 (stating "an object is a deadly weapon if the actor intends a use of the


                                              7
object in which it would be capable of causing death or serious bodily injury"). After

viewing all of the evidence in the light most favorable to the verdict, we hold the evidence

is legally sufficient to support the trial court's conclusion that appellant committed the

offense of aggravated assault by use of a deadly weapon. Issue four is overruled.

B. Ineffective Assistance of Counsel

       In issue one, appellant contends defense counsel was ineffective for failing to

present a proper defense.

       1. Standard of Review

       The Sixth Amendment to the United States Constitution, and section ten of Article

1 of the Texas Constitution, guarantee people the right to assistance of counsel in a

criminal prosecution. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)

(citing U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10). The right to counsel requires

more than a lawyer's presence; it necessarily requires the right to effective assistance.

Id. (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); Powell v. Alabama, 287

U.S. 45, 57 (1932)). However, the right does not provide a right to error-free counsel,1

but rather to objectively reasonable representation. Id. (citing Strickland v. Washington,

466 U.S. 668, 686 (1984)).

       "To prevail on a claim of ineffective assistance of counsel, an appellant must meet

the two-pronged test established by the U.S. Supreme Court in Strickland."2 Id. (citing

Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986)). "Appellant must show

that (1) counsel's representation fell below an objective standard of reasonableness, and

       1
           Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
       2
           Strickland v. Washington, 466 U.S. 668, 687 (1984).
                                                    8
(2) the deficient performance prejudiced the defense." Id. (citing Strickland, 466 U.S. at

689).   "Unless appellant can prove both prongs, an appellate court must not find

counsel's representation to be ineffective." Id. (citing Strickland, 466 U.S. at 687). "In

order to satisfy the first prong, appellant must prove, by a preponderance of the evidence,

that trial counsel's performance fell below an objective standard of reasonableness under

the prevailing professional norms." Id. "To prove prejudice, appellant must show that

there is a reasonable probability, or a probability sufficient to undermine confidence in the

outcome, that the result of the proceeding would have been different."               Id. (citing

Strickland, 466 U.S. at 687).

        "An appellate court must make a 'strong presumption that counsel's performance

fell within the wide range of reasonably professional assistance.'" Id. (quoting Robertson

v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006) (citing Strickland, 466 U.S. at 689).

"In order for an appellate court to find that counsel was ineffective, counsel's deficiency

must be affirmatively demonstrated in the trial record; the court must not engage in

retrospective speculation." Id. (citing Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999)). "'It is not sufficient that appellant show, with the benefit of hindsight, that his

counsel's actions or omissions during trial were merely of questionable competence.'"

Id. at 142–43 (quoting Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007)).

"When such direct evidence is not available, we will assume that counsel had a strategy if

any reasonably sound strategic motivation can be imagined." Id. at 143 (citing Garcia v.

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). "In making an assessment of

effective assistance of counsel, an appellate court must review the totality of the


                                               9
representation and the circumstances of each case without the benefit of hindsight." Id.

(citing Robertson, 187 S.W.3d at 483). "While a single error will not typically result in a

finding of ineffective assistance of counsel, an egregious error may satisfy the Strickland

prongs on its own." Id. (citing Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App.

1992) (stating counsel's failure to request jury instruction on issue of necessity when

appropriate was both deficient and prejudicial)); see Thompson, 9 S.W.3d at 813 (stating

that "while this Court has been hesitant to 'designate any error as per se ineffective

assistance of counsel as a matter of law,' it is possible that a single egregious error of

omission or commission by appellant's counsel constitutes ineffective assistance").

       "In the rare case in which trial counsel's ineffectiveness is apparent from the

record, an appellate court may address and dispose of the claim on direct appeal." Id.

(citing Massaro v. United States, 538 U.S. 500, 508 (2003); Robinson v. State, 16 S.W.3d

808, 813 (Tex. Crim. App. 2000)). "However, this is a difficult hurdle to overcome; the

record must demonstrate that counsel's performance fell below an objective standard of

reasonableness as a matter of law, and that no reasonable trial strategy could justify trial

counsel's acts or omissions, regardless of his or her subjective reasoning." Id. (citing

Strickland, 466 U.S. at 690; Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App.

2005)).

       The court of criminal appeals "has repeatedly stated that claims of ineffective

assistance of counsel are generally not successful on direct appeal and are more

appropriately urged in a hearing on an application for a writ of habeas corpus." Id. (citing

Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002); Mitchell v. State, 68


                                            10
S.W.3d 640, 642 (Tex. Crim. App. 2002)); see Ex parte Nailor, 149 S.W.3d 125, 131 (Tex.

Crim. App. 2004). "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.'" Id. (quoting Bone, 77 S.W.3d at 833).

"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.

       2. Analysis

       First, appellant argues defense counsel was ineffective because he did not

"properly investigate" the case. A criminal defense attorney has a duty to make an

independent investigation of the facts of a case. Ex parte Welborn, 785 S.W.2d 391, 393

(Tex. Crim. App. 1990). A breach of this duty may result in a finding of ineffective

assistance when "the result is that any viable defense available to the accused is not

advanced." Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982). In defining

the duty to investigate, the United States Supreme Court has stated that "counsel has a

duty to make reasonable investigations or to make a reasonable decision that makes

particular investigations unnecessary. In any ineffectiveness case, a particular decision

not to investigate must be directly assessed for reasonableness in all the circumstances,

applying a heavy measure of deference to counsel's judgment." Strickland, 466 U.S. at

691.

       Here, appellant did not file a motion for new trial, did not obtain an affidavit from his

defense counsel, and did not request a post-conviction hearing regarding defense


                                              11
counsel's performance.    Thus, the record is silent regarding the extent of defense

counsel's investigation. We point out that "any allegation of ineffectiveness must be

firmly founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness." Thompson, 9 S.W.3d at 913. When the record is silent with respect to

the reasons for counsel's conduct, as in this case, a finding that defense counsel was

ineffective would require impermissible speculation by the appellate court.      Stults v.

State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, no pet.).           Even

assuming defense counsel's failure to investigate the case made him "deficient" for

purposes of the Strickland test, appellant has not shown how his representation would

have been improved with the use of the additional investigation or that there is a

reasonable probability that but for defense counsel's deficient performance, the result of

the proceeding would have been different.

      Second, appellant argues defense counsel was ineffective for failing to "confer

with appellant to prepare for trial." However, the record is silent regarding whether

defense counsel failed to confer with appellant in preparation for trial. Thus, appellant

has not demonstrated that defense counsel was ineffective on this basis.

      Third, appellant argues defense counsel was ineffective because he had no

command of the facts. In order to render reasonably effective assistance, an attorney

must have a firm command of the facts of the case and the governing law. Ex parte

Welborn, 785 S.W.2d at 393; Ex parte Lilly, 655 S.W.2d 490, 493 (Tex. Crim. App. 1983).

The record in this case does not show that defense counsel lacked a firm command of the

facts or governing law. Thus, the record is insufficient to enable this Court to determine


                                            12
that defense counsel's representation was deficient in order to overcome the presumption

that counsel's conduct was reasonable and professional. Mallett v. State, 65 S.W.3d 59,

63 (Tex. Crim. App. 2001).

       Fourth, appellant argues defense counsel was ineffective because he did not

present all available evidence.     Because appellant does not state what evidence

defense counsel failed to present, we cannot determine whether counsel's performance

was deficient. Thus, appellant has failed to meet the first prong of the Strickland test

because he has not shown counsel's representation fell below an objective standard of

reasonableness. See Strickland, 466 U.S. at 689.

       Fifth, appellant argues defense counsel was ineffective for failing to make timely

objections. Appellant does not state what objections defense counsel failed to make in a

timely manner. Even assuming defense counsel was deficient for failing to make timely

objections, appellant has not shown how counsel's performance prejudiced the outcome

of his case.

       Sixth, appellant argues defense counsel was ineffective for failing to call an expert

witness during the guilt-innocence phase. When an appellant argues defense counsel's

conduct constituted ineffective assistance by failing to call an expert witness, the

appellant must show that the expert's testimony would have been beneficial to him. See

Cate v. State, 124 S.W.3d 922, 927 (Tex. App.—Amarillo 2004, pet. ref'd); Teixeira v.

State, 89 S.W.3d 190, 194 (Tex. App.—Texarkana 2002, pet. ref'd). The appellant must

also show that the witness was available to testify. Butler v. State, 716 S.W.2d 48, 55

(Tex. Crim. App. 1986); Johnson v. State, 959 S.W.2d 230, 236 (Tex. App.—Dallas 1997,


                                            13
no pet.). In the case before us, appellant does not state (1) what expert witness defense

counsel failed to call, (2) whether an expert witness was available to testify, or (3) how an

expert witness would have been beneficial to him. Thus, appellant has failed to meet the

first prong of the Strickland test because he has not shown counsel's representation fell

below an objective standard of reasonableness. See Strickland, 466 U.S. at 689.

       Seventh, appellant argues defense counsel was ineffective for failing to call any

witnesses to testify on his behalf. In the context of an ineffective-assistance claim, a

criminal defense lawyer has a duty to make an independent investigation of the facts of a

case, which includes seeking out and interviewing potential witnesses.           Brennan v.

State, 334 S.W.3d 64, 71 (Tex. App.—Dallas 2009, no pet.). An ineffective assistance of

counsel claim based on counsel's failure to call witnesses fails in the absence of a

showing that the witnesses were available to testify and that the defendant would have

benefitted from their testimony. Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim. App.

2004). In this case, appellant does not state (1) what witness's defense counsel failed to

call, (2) whether the witnesses were available to testify, and (3) how the witnesses's

testimony would have benefitted him. Thus, appellant has failed to meet the first prong

of the Strickland test because he has not shown counsel's representation fell below an

objective standard of reasonableness. See Strickland, 466 U.S. at 689.

       Eighth, appellant argues defense counsel was ineffective for failing to file a

discovery motion. The record does not reflect whether defense counsel was denied

access to the State's files in this case. Accordingly, we cannot determine whether

counsel needed to file a discovery motion. Thus, appellant has failed to meet the first


                                             14
prong of the Strickland test because he has not shown counsel's representation fell below

an objective standard of reasonableness. See Strickland, 466 U.S. at 689.

       Ninth, appellant argues defense counsel was ineffective for failing to call him as a

witness. A defendant has a right to testify. Johnson v. State, 169 S.W.3d 223, 235

(Tex. Crim. App. 2005). However, appellant does not argue, and the record does not

reflect, that he wanted to testify. Without proof from appellant that there is no plausible

professional reason for defense counsel's decision not to call him as a witness, we may

not speculate on why counsel acted as he did. See Bone, 77 S.W.3d at 835–36. Thus,

appellant has failed to establish the first prong of the Strickland test. See Salinas v.

State, 163 S.W.3d 734, 740–41 (Tex. Crim. App. 2005) (holding that counsel not

ineffective when record does not reflect that defendant asserted his right to testify and

counsel failed to protect it).

       Tenth, appellant argues defense counsel was ineffective for failing to "properly

challenge State experts." The witness whom appellant is referring to is Detective James

Lerma, the officer who investigated this case. Appellant does not direct us to any portion

of the record where the State offered him as an expert. Thus, appellant has failed to

meet the first prong of the Strickland test because he has not shown counsel's

representation fell below an objective standard of reasonableness. See Strickland, 466

U.S. at 689.

       Lastly, appellant argues defense counsel was ineffective for failing to file any

motions. Appellant did not obtain a motion for new trial hearing, and no direct evidence

in the record establishes defense counsel's reasoning for defending the case as he did.


                                            15
We therefore presume that counsel had a plausible reason for his actions.            See

Thompson, 9 S.W.3d at 814. On appeal, appellant has failed to explain why the actions

by defense counsel fell below an objectionable standard of reasonableness. We hold

appellant did not meet the first prong of Strickland because he has failed to show and the

record does not demonstrate that his counsel's performance fell below an objective

standard of reasonableness. See Thompson, 9 S.W.3d at 812. Issue one is overruled.

      In issue two, appellant contends defense counsel was ineffective for failing to

present evidence regarding appellant's mental illness.      Specifically, he asserts that

defense counsel's performance fell below "reasonable standards" by failing to present

any evidence concerning his mental illness. The clerk's record contains a document

entitled, "OBSERVATION OF PERSON SUSPECTED OF HAVING MENTAL ILLNESS

OR MENTAL RETARDATION," which states, in relevant part: "The Nueces County

Sheriff's Office has received credible information within the preceding 72 hours that

establishes reasonable cause that the above named individual [appellant] has a mental

illness or is mentally retarded." Below this statement is a box with a check mark in it.

The following language appears next to the box:     "Individual is delusional and making

statements that are illogical and irrational." At the bottom of this document appears the

statement:   "MHMR CARE Match Report[.]"            Below this statement appears the

following: "Inmate stated that he was MHMR, he has attempted suicide before, and

wants to hurt someone." This document also includes an "ORDER OF REFERRAL BY

MAGISTRATE FOR MHMR ASSESSMENT[.]" Below this heading is a box with a check

mark in it. The following language appears next to the box: "The Magistrate finds that


                                           16
there exists reasonable cause to believe that the individual may have a Mental

Illness/Mental Retardation and therefore orders the Nueces County MHMR to conduct an

assessment under Art. 16.22 of the Texas Code of Criminal Procedure." The order is

signed by the magistrate, and it is dated March 30, 2010. Appellant did not provide the

results of the assessment ordered by the magistrate and does not direct us to any portion

of record that contains the results of the assessment.

       3. Applicable Law

       In Wiggins v. Smith, the United States Supreme Court granted federal habeas

corpus relief based on a defense attorney's failure to further investigate and put forth

mitigating punishment evidence, showing severe physical and sexual abuse suffered by

Wiggins which counsel apparently knew about before trial. Wiggins v. Smith, 539 U.S.

510, 515–16 (2003). "Under the test set forth in Wiggins, we must decide whether the

actions taken by counsel in investigating [appellant's] background were reasonable,

specifically, 'whether the investigation supporting counsel's decision not to introduce

mitigating evidence of [appellant's] background was itself reasonable.'"              Ex parte

Martinez, 195 S.W.3d, 727 (Tex. Crim. App.) (quoting Wiggins, 539 U.S. at 523)

(emphasis in original). "A failure to uncover and present mitigating evidence cannot be

justified as a tactical decision when defense counsel [has] 'not' fulfill[ed] their obligation to

conduct a thorough investigation of the defendant's background.'" Rivera v. State, 123

S.W.3d 21, 31 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd) (quoting Wiggins, 539

U.S. at 520).




                                               17
       4. Analysis

       Here, the quantum of evidence already known to appellant's defense counsel is

unknown. The record does not include a declaration by defense counsel, stating what

he knew about appellant's alleged mental illness or whether he was aware of the results

of the mental-health assessment ordered by the magistrate. Even assuming defense

counsel knew the results of the assessment, the results may have been unfavorable to

appellant. For that reason, defense counsel may have decided not to present the results

of the assessment as mitigating evidence. To overcome the presumption of reasonable

professional assistance, "'any allegation of ineffectiveness must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness.'"

Salinas, 163 S.W.3d at 740 (quoting Thompson, 9 S.W.3d at 813). Even assuming

counsel's performance was deficient, appellant has failed to demonstrate that the

defense was prejudiced by counsel's performance. We overrule the second issue.

       In issue three, appellant contends defense counsel was ineffective for failing to

make timely objections during the trial.     Appellant directs us to several instances

throughout the trial where he claims defense counsel should have made objections.

Assuming without deciding that counsel's performance was deficient, appellant has failed

to prove that his defense was prejudiced by the absence of these objections. Issue three

is overruled.




                                           18
                                     III. CONCLUSION

       We affirm the trial court's judgment.




                                                    ROSE VELA
                                                    Justice

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

Delivered and filed the
8th day of December, 2011.




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