                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-13-00370-CR

JOSE ISABEL ESTRADA,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                           From the 361st District Court
                               Brazos County, Texas
                         Trial Court No. 12-03460-CRF-361


                           MEMORANDUM OPINION


       Jose Isabel Estrada was convicted of aggravated sexual assault of a child and

sentenced to 30 years in prison. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B) (West

Supp. 2013). Because Estrada did not meet his burden to establish that his trial counsel

was ineffective, the trial court’s judgment is affirmed.

       In one issue, Estrada argues that his trial counsel was ineffective because of the

cumulative effect of counsel’s failure to object to what Estrada contends was 1) victim
impact testimony at the guilt/innocence phase, 2) hearsay, and 3) opinion testimony

regarding the complainant’s truthfulness.

        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 that (1)

counsel's representation fell below an objective standard of reasonableness, and (2) the

deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex.

Crim. App. 2011). Unless appellant can prove both prongs, an appellate court must not

find counsel's representation to be ineffective. Lopez, 343 S.W.3d at 142. 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.

        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)). 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. at 143 (citing Bone v. State,

77 S.W.3d 828, 833 n. 13 (Tex. Crim. App. 2002)). On direct appeal, the record is usually


Estrada v. State                                                                       Page 2
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 (quoting Thompson v. State, 9 S.W.3d 808, 813-814)).

        Here, trial counsel objected to some of the complained of testimony but not for

the reasons stated by Estrada on appeal. The record is silent as to why counsel did not

make the recommended objections or did not make an objection at all. Thus, Estrada

has failed to meet his burden under the first prong of Strickland, and his sole issue is

overruled.

        The trial court’s judgment is affirmed.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed June 19, 2014
Do not publish
[CRPM]




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