                            NUMBER 13-13-00527-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

ELIAS GARCIA,                                                              Appellant,


                                           v.


THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 214th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Rodriguez and Longoria
             Memorandum Opinion by Justice Longoria
      By eight issues, appellant Elias Garcia appeals his conviction and sentence for

burglary of a habitation, a second-degree felony enhanced to a first-degree felony by the

habitual offender statute. See TEX. PENAL CODE ANN. §§ 30.02(a), (c)(2), 12.42(b) (West,
Westlaw through 2013 3d C.S.). The State alleged that appellant broke into the house of

Andrew Scafidi, a professional security guard, and stole several firearms. The case was

tried to a jury, which returned a verdict of guilty and assessed punishment at sixty-five

years’ imprisonment in the Texas Department of Criminal Justice—Institutional Division.

We affirm.

                                        I. DISCUSSION

       The State asserts that all of appellant’s issues are multifarious. We agree. A

multifarious issue “is one that embraces more than one specific ground.” Stults v. State,

23 S.W.3d 198, 205 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). “By combining

more than one contention in a single point of error, an appellant risks denial on the ground

that the issue is multifarious and presents nothing for review.” Prihoda v. State, 352

S.W.3d 796, 801 (Tex. App.—San Antonio 2011, pet. ref’d). We have discretion to “refuse

to review a multifarious issue or we may elect to consider the issue if we are able to

determine, with reasonable certainty, the alleged error about which the complaint is

made.” Gilley v. State, 418 S.W.3d 114, 119 n.19 (Tex. Crim. App. 2014) (quoting

Prihoda, 352 S.W.3d at 801); accord Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim.

App. 2010) (“Because appellant bases his single point of error on more than one legal

theory, his entire point of error is multifarious.”). To the extent that we can discern an

issue in the brief, it is that he purportedly received ineffective assistance of counsel. We

will address this issue in the interest of justice. See Davis, 329 S.W.3d at 803.

       A. Standard of Review and Applicable Law

       We evaluate claims of ineffective assistance of counsel under the strict standards

set forth by the United States Supreme Court in Strickland v. Washington. 466 U.S. 668,

687 (1984); see Foley v. State, 327 S.W.3d 907, 913 (Tex. App.—Corpus Christi 2010,
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pet. ref’d). Under the Strickland standard, appellant must show by a preponderance of

evidence that: (1) trial counsel’s representation fell below an objective standard of

reasonableness; and (2) there is a reasonable probability that the result of the proceeding

would have been different but for the attorney’s deficient performance. Strickland, 466

U.S. at 687. “A reasonable probability is a probability sufficient to undermine confidence

in the outcome.” Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim. App. 2012) (quoting

Strickland, 466 U.S. at 694). Appellate courts may address either prong first, and if an

appellant fails to prove one prong of the test, we do not need to address the other prong.

Id.

      When evaluating the quality of trial counsel’s representation, we look to “the totality

of the representation and the particular circumstances of each case.” Thompson v. State,

9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Even though “a single egregious error of

omission or commission” can constitute ineffective assistance, the Texas Court of

Criminal Appeals has been hesitant to designate any particular error as ineffective

assistance per se. Id. We apply “a strong presumption that counsel's conduct fell within

the wide range of reasonable professional assistance.” Id. Allegations of ineffectiveness

must therefore be “firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness.” Id. (citing McFarland v. State, 928 S.W.2d 482,

500 (Tex. Crim. App. 1996)).

      The Texas Court of Criminal Appeals has explained that “trial counsel should

ordinarily be afforded an opportunity to explain his actions before being denounced as

ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) (citing Bone

v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002)). Direct appeal is usually inadequate



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to make an ineffectiveness claim because the record is frequently undeveloped in this

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

389 S.W.3d at 819 n.11 (observing that “a reviewing court will rarely be in a position on

direct appeal to fairly evaluate the merits of an ineffective-assistance claim”). Without

evidence of trial counsel’s strategy, “an appellate court will assume a strategic motivation

and will not conclude that the challenged conduct was deficient unless it was so

outrageous no competent attorney would have engaged in it.” Ozuna v. State, 199

S.W.3d 601, 612 (Tex. App.—Corpus Christi 2006, no pet.) (citing Garcia v. State, 57

S.W.3d 436, 440 (Tex. Crim. App. 2001)).

       B. Analysis

       Appellant argues that he received ineffective assistance of counsel as a result of

five alleged omissions.1 However, the record is silent as to counsel’s reasons for failing

to perform these actions, and a silent record is generally insufficient to support an

ineffective assistance of counsel claim. See Goodspeed, 187 S.W.3d at 392; Rylander,




       1   Appellant alleges that his counsel performed unreasonably because he did not:

       (1) object to the prosecutor making “too many remarks about the amount of the possible
           range of punishment . . . in the event that appellant was found guilty, that gave too
           strong a hint that appellant was a convicted felon”;

       (2) object when a jury member referred to appellant as a “habitual” as a result of those
           remarks;

       (3) object when the State offered latent print cards that had been taken at the crime scene
           because the envelope that contained the print cards included a print out from the
           “Evidence Locke” computer system which mentioned that appellant was also charged
           with unauthorized use of a motor vehicle;

       (4) call Mrs. Scafidi and her friend Vicki Cashion as witnesses to impeach Mr. Scafidi’s
           testimony and statements to the police that no one in his family knew appellant;

       (5) offer additional alternative explanations for how appellant’s fingerprints came to be on
             Mr. Scafidi’s gun cabinet.

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107 S.W.3d at 110–11; Foley, 327 S.W.3d at 913. Moreover, we note that appellant

cannot establish deficient performance from the first alleged omission because our review

of the record indicates that the State did nothing more than attempt to qualify the jury on

the full range of punishment that would be available if the State proved a prior offense for

enhancement purposes, something either party may do. See Barnett v. State, 344

S.W.3d 6, 20 (Tex. App.—Texarkana 2011, pet. ref’d) (citing Frausto v. State, 642 S.W.2d

506, 509 (Tex. Crim. App. [Panel Op.] 1982)); accord Aschraft v. State, 900 S.W.2d 817,

832 (Tex. App.—Corpus Christi 1995, pet. ref’d).

        Regarding the second and third alleged omissions, counsel’s failure to object,

appellant has not addressed whether the trial court judge would have committed error in

overruling the objections.2 Regarding the fourth alleged omission, appellant cannot

establish deficient performance because he has not established that he would have

benefited from the testimony of the witnesses he argues his counsel should have called

to testify.3 Regarding the fifth alleged omission, appellant asserts that his counsel did not

offer an additional alternative explanation for how appellant’s fingerprints were at the

scene of the crime, but we cannot second guess appellant’s trial counsel without giving


        2  See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (holding that in order “[t]o show
ineffective assistance of counsel for the failure to object during trial,” an appellant “must show that the trial
judge would have committed error in overruling the objection”); accord Ex parte Martinez, 330 S.W.3d 891,
901 (Tex. Crim. App. 2011).

        3 The Texas Court of Criminal Appeals has held that “failure to call witnesses at the guilt-innocence
and punishment stages is irrelevant absent a showing that such witnesses were available and appellant
would benefit from their testimony.” Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (quoting
King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983)). If appellant demonstrates both of those things,
he must also demonstrate that there is a reasonable probability that the witnesses’ testimony would have
affected the result of the trial. Id.

        Appellant asserts that the testimony of Mrs. Scafidi and Cashion would have impeached the
testimony of Mr. Scafidi that no one in his family knew appellant, but appellant does not explain how
contradicting Mr. Scafidi on these matters would have affected the outcome of the trial. See id.


                                                       5
counsel an opportunity to explain his trial strategy. See Goodspeed, 187 S.W.3d at 392.

         In sum, we conclude that appellant did not rebut the strong presumption that his

counsel rendered constitutionally effective assistance. See id.; Thompson, 9 S.W.3d at

813; Rylander, 107 S.W.3d at 110–11; Foley, 327 S.W.3d at 913. We overrule his sole

issue.

                                         II. CONCLUSION

         We affirm the judgment of the trial court.




                                                      NORA L. LONGORIA
                                                      Justice

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

Delivered and filed the
22nd day of May, 2014.




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