                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-483-CR


ARTURO SILVA, JR.                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

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           FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      Appellant Arturo Silva, Jr. appeals his conviction for aggravated assault.

He contends in two issues that his trial counsel was ineffective for failing to

present expert mitigation testimony during the punishment phase of his trial and




      1
           See Tex. R. App. P. 47.4.
that he suffered egregious harm from the trial court’s submission of an improper

verdict form. We affirm.

                    II. Factual and Procedural Background

      Appellant first met Rocio Olivares when Appellant and his family attended

the Denton, Texas church where Pedro and Zaida Beltran served as pastors.

Appellant and Rocio spent time together during church activities, and although

Appellant was under age seventeen and Rocio was in her mid-twenties at the

time, their relationship eventually became sexual. Rocio ended the relationship

in 2007, however, after she moved to Corpus Christi. She moved back to

Denton in December 2007 and moved in with Pedro and Zaida, but she took

steps to ensure Appellant could not contact her. Despite her efforts, Appellant

located Rocio, started calling her repeatedly, and threatened in early March

2008 to hurt anyone who was around her and involved in their break-up.

      On March 30, 2008, Appellant drove to Pedro and Zaida’s trailer with an

acquaintance. With a gun in hand, Appellant walked toward the entrance, but

Pedro blocked his entrance into the trailer. Zaida joined Pedro at the trailer

entrance, and they pleaded with Appellant to leave.      Appellant insisted he

wanted to see Rocio and fired a shot into the air before shooting Pedro in the

leg. A struggle ensued between Appellant, Pedro, and Zaida. Pedro sustained

gunshot wounds to his leg, chest, and arm; Zaida suffered gunshot wounds to

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her face, neck, and arm.      After Appellant had fled the scene with his

acquaintance, Pedro and Zaida were careflighted to Dallas.

      Appellant was initially indicted for two counts of aggravated assault but

was subsequently indicted for the single offense of attempted capital murder. 2

Appellant was charged with attempting to murder both Pedro and Zaida in one

criminal transaction. He pleaded not guilty and was tried in December 2008.

At trial, the State, seeking to convict Appellant for attempted capital murder,

argued Appellant went to Pedro and Zaida’s trailer with the specific intent to

kill them. Appellant’s trial counsel countered that the March 30, 2008 struggle

was an unfortunate incident that escalated out of control, that Appellant was

guilty of committing aggravated assault against Pedro and Zaida, but that

Appellant did not go to their trailer with the intent to kill them. In the jury

charge, the trial court submitted attempted capital murder and the lesser-

included offense of aggravated assault.     A jury found Appellant guilty of

aggravated assault against Pedro and Zaida and assessed Appellant’s

punishment at twenty years’ confinement. This appeal followed.




      2
       See Tex. Penal Code Ann. §§ 15.01 (defining criminal attempt),
19.03(a)(7)(A) (defining capital murder to include the murder of multiple
persons during the same criminal transaction) (Vernon 2003).

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                     III. Ineffective Assistance of Counsel

      In his first issue, Appellant contends his trial counsel was ineffective for

failing to obtain expert mitigation testimony.      Appellant contends that a

mitigation expert would have interviewed Appellant and his friends, family, and

acquaintances and created a sociological history and that this evidence would

have mitigated against the maximum twenty-year sentence he received.

      To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different.   Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.

2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v.

State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). There is no requirement

that we approach the two-pronged inquiry of Strickland in any particular order

or even address both components of the inquiry if the defendant makes an

insufficient showing on one component. Strickland, 466 U.S. at 697, 104 S.

Ct. at 2069.      “In the majority of cases, the record on direct appeal is




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undeveloped and cannot adequately reflect the motives behind trial counsel’s

actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63).

      Here, Silva raises his ineffective assistance claim on direct appeal,

without having filed a motion for new trial to develop his position and without

any evidence concerning any particular basis for mitigation that trial counsel

should have raised but did not. For example, Appellant contends a mitigation

expert would have interviewed his friends, family, and acquaintances, but

Appellant has not identified the friends, family members, and acquaintances he

claims the expert would have interviewed or shown what those interviews

would have revealed. Appellant has also not presented evidence concerning the

reason his trial counsel did not request a mitigation expert.

      The facts here are thus analogous to our decision in Chavarri v. State, in

which we held,

      [T]here is no evidence in the record demonstrating why trial
      counsel did not hire a mitigation specialist, there is no evidence in
      the record illuminating the extent of trial counsel’s investigation
      into Chavarri’s background and life circumstances for possible
      mitigating evidence, nor is there any evidence in the record that
      mitigating evidence existed to be discovered by a mitigation
      specialist. The silent record is thus not sufficiently developed to
      allow us to do more than speculate as to why trial counsel did not
      hire a mitigation specialist. . . .

      Because Chavarri’s allegation of ineffectiveness is not firmly
      founded in the record, he has not overcome the strong presumption



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      that trial counsel’s conduct fell within the wide range of reasonable
      representation.

Nos. 02-08-00099-CR, 02-08-00100-CR, 2009 WL 885954, at *2 (Tex.

App.—Fort Worth Apr. 2, 2009, no pet.) (mem. op., not designated for

publication) (footnote and citations omitted); see also Perry v. State, No. 02-09-

00128-CR, 2009 WL 4547114, at *4–5 (Tex. App.—Fort Worth Dec. 3, 2009,

no pet.) (mem. op., not designated for publication) (relying on Chavarri to hold

the appellant failed to show his trial counsel’s assistance was ineffective);

Grijalva v. State, No. 02-08-00018-CR, 2008 WL 4602252, at *1 (Tex.

App.—Fort Worth Oct. 16, 2008, no pet.) (mem. op., not designated for

publication) (holding similarly and explaining there was no “evidence in the

record indicating that any such mitigation evidence existed to be discovered by

a mitigation specialist had appellant obtained one”).

      Because the record is undeveloped and Silva has not proven or even

contended there is any particular mitigating evidence that existed and would

have been introduced at trial had his trial counsel retained a mitigation expert,

we hold Silva has not sustained his burden to show that trial counsel was

ineffective. We overrule Appellant’s first issue.




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                            IV. Error in Verdict Form

      In his second issue, Appellant argues an improper verdict form caused him

egregious harm. Specifically, Appellant contends that the verdict form lacked

separate findings for each of the two counts of aggravated assault and that the

lack of separate findings “mandated” that the jury find him guilty of both counts

as opposed to each count independently.

      Appellant did not object to the verdict form in the trial court. 3 If there is

error in the court’s charge but the appellant did not preserve it at trial, we must

decide whether the error was so egregious and created such harm that

appellant did not have a fair and impartial trial—in short, that “egregious harm”

has occurred. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)

(op. on reh’g); see Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Allen

v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008); Hutch v. State, 922

S.W.2d 166, 171 (Tex. Crim. App. 1996). Egregious harm is the type and level

of harm that affects the very basis of the case, deprives the defendant of a

valuable right, or vitally affects a defensive theory. Allen, 253 S.W.3d at 264




      3
        The State argues Appellant waived his verdict form complaint because
he did not object to the verdict form at trial. However, because a verdict form,
if provided to the jury by the trial court, “becomes a part of the jury charge,”
we will review the verdict form under Almanza. Jennings v. State, 302 S.W.3d
306, 310 (Tex. Crim. App. 2010).

                                         7
& n.15; Olivas v. State, 202 S.W.3d 137, 144, 149 (Tex. Crim. App. 2006);

Almanza, 686 S.W.2d at 172.

      In making an egregious harm determination, “the actual degree of harm

must be assayed in light of the entire jury charge, the state of the evidence,

including the contested issues and weight of probative evidence, the argument

of counsel and any other relevant information revealed by the record of the trial

as a whole.” Almanza, 686 S.W.2d at 171; see generally Hutch, 922 S.W.2d

at 172–74. The purpose of this review is to illuminate the actual, not just

theoretical, harm to the accused. Almanza, 686 S.W.2d at 174. Egregious

harm is a difficult standard to prove and must be determined on a case-by-case

basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002); Hutch,

922 S.W.2d at 171.

      In this case, the court’s charge included, as lesser-included offenses to

attempted capital murder, two counts of aggravated assault, but the verdict

form the trial court provided to the jury did not list the two lesser-included

aggravated assault counts separately. Assuming without deciding that this was

error, we hold the error, if any, did not egregiously harm Appellant.        The

application paragraphs in the court’s charge correctly set forth each of the two

aggravated assault paragraphs separately. Further, although the parties hotly

contested whether Appellant went to the Beltrans’ home with the intent to kill

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them, there was no dispute that Appellant’s conduct constituted, at a

minimum, aggravated assault against both Pedro and Zaida. Indeed, the State

argued to the jury that Appellant was guilty of attempted capital murder, not

aggravated assault, and Appellant’s counsel argued that Appellant was guilty

of committing aggravated assault against both Pedro and Zaida but was not

guilty of attempted capital murder.

      Moreover, neither counsel commented on the specific language of the

verdict form, and the State’s only references to the verdict form were to

mention the existence of a lesser-included charge within the jury’s options on

the verdict form and to argue to the jury that “there is a lesser-included charge

in here . . . it’s something to consider but it’s not something that you have to

do, okay, just because it’s in there.” Finally, the alleged error in the verdict

form arguably benefitted Appellant because it required the jury to find Appellant

guilty of aggravated assault against both Pedro and Zaida before it could find

Appellant guilty of aggravated assault against only one of them. See Torres v.

State, 493 S.W.2d 874, 875 (Tex. Crim. App. 1973) (holding the appellant

could not complain of a charge that was more favorable to his rights than he

requested); Bolanos v. State, No. 08-01-00192-CR, 2002 WL 31320253, at

*6 (Tex. App.—El Paso Oct. 17, 2002, no pet.) (not designated for publication)

(holding charge error not harmful because it benefitted defendant by requiring

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jury to find defendant committed offense in both indicted manners).           We

therefore hold that the error in the verdict form, if any, did not cause Appellant

egregious harm. We overrule Appellant’s second issue.

                                 V. Conclusion

      Having overruled each of Appellant’s two issues, we affirm the judgment

of the trial court.




                                            ANNE GARDNER
                                            JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DAUPHINOT, J. concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 25, 2010.




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