                                     NUMBER 13-05-513-CR

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


ARMANDO VELA,                                                                                 Appellant,

                                                      v.

THE STATE OF TEXAS,                                                                           Appellee.


   On appeal from the 319th District Court of Nueces County, Texas.


                               MEMORANDUM OPINION

                   Before Justices Rodriguez, Garza, and Wittig1
                      Memorandum Opinion by Justice Wittig

        Appellant, Armando Vela, was convicted of aggravated robbery by a jury. An

enhancement was found to be true and punishment was assessed by the jury at thirty

years in prison. We affirm the judgment of the trial court.


        1
         Retired Fourteenth Court of Appeals Justice Don W ittig assigned to this Court by the Chief Justice
of the Suprem e Court of Texas pursuant to the governm ent code. T EX . G O V ’T C OD E A N N . § 74.003 (Vernon
2005).
       In two issues, appellant challenges the legal and factual sufficiency of the evidence,

and the denial of a challenge for cause. In the remaining three issues, he alleges

ineffective assistance of counsel. Appellant gave timely notice of appeal. We address his

issues in order.

                                      1. Standard of Review

       In reviewing legal sufficiency, we look at all of the evidence in the light most

favorable to the prosecution to determine whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Vasquez v. State,

67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Legally sufficient evidence supporting a

conviction exists if the court, after reviewing the evidence in the light most favorable to the

prosecution, determines that a rational trier of fact could have found the essential elements

of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19

(1979).

       Evidence may be factually insufficient if: (1) it is so weak as to be clearly wrong and

manifestly unjust, or (2) the adverse finding is against the great weight and preponderance

of the available evidence. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007)

(citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). The evidence, though

legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly

wrong and manifestly unjust, or if, considering conflicting evidence, the jury's verdict,

though legally sufficient, is nevertheless against the great weight and preponderance of the

evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). A factual

sufficiency review requires the reviewing court to consider all of the evidence. Marshall v.



                                                 2
State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). A clearly wrong and unjust verdict

occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly

demonstrates bias. Sells v. State, 121 S.W.3d 748, 754 (Tex. Crim. App. 2003). The

Texas Court of Criminal Appeals in Roberts explained that a reversal for factual

insufficiency cannot occur when "the greater weight and preponderance of the evidence

actually favors conviction." Roberts, 220 S.W.3d at 524.

                            2. The Proof and Analysis

       Appellant and his girlfriend, co-defendant Maria Garcia, entered a Kohl’s Department

Store. A security employee started surveillance with a store camera and caught appellant

on tape taking a pair of tennis shoes from the shoe department and placing them on a shelf

in a different aisle. Garcia then took the shoes and put them in her purse. The two then

went to the athletic department where appellant picked out a pair of male athletic shorts and

a black T-shirt. He handed them to Garcia who took the items off their hangers and put

them into her purse. Garcia exited the store first and did not pay for the merchandise.

When caught, Garcia offered to return the property. She was escorted back to the store.

The in-store security tape was received into evidence without objection.

       A security guard spotted appellant exiting the store and heading toward his vehicle.

The vehicle was parked about ten spaces from the door. The guard held up his badge at

face level and told appellant to come with him. Appellant pulled out a knife and headed

toward the guard at a quick pace stating: “I don’t have to go back with you. F— you.”

Appellant then advanced toward the guard from a distance of thirty feet to thirty yards to

within four or five feet. The pocket knife was open and pointed toward the guard, who

testified that he was scared. Another security guard stepped in and appellant then fled the

                                             3
scene. Appellant was apprehended by police and brought back to the store within twenty

minutes or less. The security guard’s testimony was corroborated by witness Andrew

Simpson.

       Garcia testified that she was appellant’s girlfriend. They had been together for more

than a year and had lived together. Garcia told appellant she did not want to go into the

store and steal that day. The couple had stolen property together on other occasions.

Friends would “order” items to be stolen. The shoes appellant took were to fill such an

order. When Garcia left the store she was surprised that she had lost appellant. She

thought appellant perhaps stayed in the store to see if she had been caught. She did not

see appellant walk toward Silva, pull a knife, or swear at Silva. Garcia did not deny that

these things occurred, but rather, stated that she did not see them because she was scared

and ran from the scene. Garcia testified that she felt like she was hung out to dry when she

learned appellant told police he did not know her.

       Appellant argues the evidence does not support a conviction because appellant

“never maintained control of the property while exiting the store or outside of the store”

sufficient to establish the intent necessary for aggravated robbery. In other words, appellant

contends that he lacked the intent to maintain control of the property at the time of the

assault to support a conviction of aggravated robbery. In any event, appellant contends that

the confrontation in the parking lot was separate and apart from the theft in the store.

       Section 29.01 of the Texas Penal Code provides:

       (1) "In the course of committing theft" means conduct that occurs in an
       attempt to commit, during the commission, or in immediate flight after the
       attempt or commission of theft.

       (2) "Property" means:

                                              4
              (A) tangible or intangible personal property including anything severed
              from land; or

              (B) a document, including money, that represents or embodies
              anything of value.

TEX . PENAL CODE ANN . § 29.01 (Vernon 2003).

       Section 29.02(a), governing “robbery,” provides, in pertinent part, that :

       A person commits an offense if, in the course of committing theft as defined
       in Chapter 31 of this code and with intent to obtain or maintain control of the
       property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to
       another; or (2) intentionally or knowingly threatens or places another in fear
       of imminent bodily injury or death....

Id. § 29.02 (Vernon 2003). Section 29.03(a), governing aggravated robbery, provides, in

pertinent part, that "[a] person commits an offense if he commits robbery as defined in

Section 29.02 of this code, and he . . . uses or exhibits a deadly weapon.” Id. § 29.03.

       Both parties cite White v. State, 671 S.W.2d 40, 41 (Tex. Crim. App. 1984). White

holds that the phrase “in the course of committing theft” includes conduct that occurs in an

attempt to commit, during the commission, or in immediate flight after the attempt or

commission of theft. Id. (citing TEX . PENAL CODE § 29.01). No completed theft is required

in order for the proscribed conduct to constitute the offense of robbery under the penal

code. Id. (citing Robinson v. State, 596 S.W.2d 130 (Tex. Crim. App. 1980); Earl v. State,

514 S.W.2d 273 (Tex. Crim. App. 1974)).

       Appellant further cites Lightner v. State, 535 S.W.2d 176, 178 (Tex. Crim. App.

1976). In Lightner, the Texas Court of Criminal Appeals affirmed a robbery conviction

where the facts showed that the defendant had assaulted a police officer in an attempt to

avoid arrest immediately following the theft of money from an unattended cash register in


                                              5
a store. See id. The defendant in that case argued that the evidence was insufficient to

show robbery since the struggle with the police officer occurred after he had completed the

theft. Id. The Lightner court held that:

       Under Sections 29.01 and 29.02, supra, the offense of robbery includes any
       violence in the course of effectuating the theft as well as any violence while
       in immediate flight from the scene of the theft. This new definition of robbery
       proscribes the use of violence not only in the taking of the property, but also
       in the immediate efforts of the thief to keep the stolen property . . . .

Id.

       The element "intent to obtain or maintain control of the property" in section 29.02

"deals with the robber's state of mind regarding the property" involved in the theft or

attempted theft, and not his state of mind in the assaultive component of the offense of

aggravated robbery. Ex parte Santellana, 606 S.W.2d 331, 333 (Tex. Crim. App. 1980).

Therefore, violence or intentional threats or placing another in fear of imminent bodily injury

accompanying an escape immediately subsequent to an attempted theft can constitute

robbery under section 29.02. See Ulloa v. State, 570 S.W.2d 954, 957 (Tex. Crim. App.

1978); TEX . PENAL CODE ANN . § 29.02, Practice Commentary; see also Yarbrough v. State,

656 S.W.2d 200, 201-02 (Tex. App.–Austin 1983, no pet.); Banks v. State, 638 S.W.2d 532,

535 (Tex. App.–Houston [1st Dist.] 1982, pet. ref’d.).

       Appellant is further burdened with the fact that his co-defendant had already

completed the theft and the jury charge included an instruction on the law of parties.

Accordingly, the jury could convict appellant under the evidence if he acted with intent to

promote or assist the commission of theft by encouraging, directing, aiding, or attempting

to aid Garcia. See TEX . PENAL CODE ANN . § 7.01 (Vernon 2003). Both the video tape of the



                                              6
theft and live testimony clearly demonstrate this.

       The law does not require that appellant had the intent to maintain control over the

property at the time the assault took place. White, 671 S.W.2d at 40-41. The evidence is

thus sufficient to prove the aggravated element that appellant exhibited or used a deadly

weapon. See TEX . PENAL CODE ANN . § 29.03.

       We hold that there is legally and factually sufficient evidence to show that appellant

committed the offense of aggravated robbery. See Lightner, 535 S.W.2d at 177-78; see

also TEX . PENAL CODE ANN . § 29.03. Appellant’s first issue is overruled.

                                   3. Challenge for Cause

       In his second issue, appellant complains the trial court abused its discretion in

denying his challenge for cause of venireman Louis Garcia. Appellant claims Garcia was

biased because he had a niece who was murdered. Her killer received only six months in

jail and some years of probation. Because of this experience, Garcia said he may lean

towards a heavier sentence if appellant were found guilty. “[I]f I find him guilty and he’s

found guilty by a unanimous decision, depending on everything that I’ve heard, I may lean

towards a more heavier sentence.” Further, Garcia stated that he would judge the

accused’s truthfulness with “extreme prejudice” if he found out that appellant had a prior

conviction.

       The venireman was challenged for cause and the trial count denied the motion. At

that point, defense counsel stated: “Well, Your Honor, then I would ask the Court to allow

me an extra challenge so that I can—because I’m going to strike this man, peremptory

challenge. And I would like an extra challenge so that I can remove this man from the jury.”

The court denied the request.

                                             7
       Appellant argues on appeal that counsel would have used another peremptory

challenge on the next venireman. The State argues, and we agree, that the record does

not support this assertion.

       In order to show harm from the erroneous denial of a challenge for cause, a

defendant must demonstrate: (1) when a defendant exercises a peremptory challenge on

a veniremember whom the trial court erroneously failed to excuse for cause at the

defendant's request; (2) the defendant uses all of his statutorily allotted peremptory

challenges; and (3) the defendant was denied a request for an additional peremptory

challenge which he claims he would use on another veniremember whom the defendant

identifies as "objectionable" and who actually sits on the jury. Escamilla v. State, 143

S.W.3d 814, 821 (Tex. Crim. App. 2004) (citing Johnson 43 S.W.3d at 5-6; Wolfe v. State,

147 Tex. Crim. 62, 178 S.W.2d 274, 280-81 (1944) (op. on reh'g)).

       In Wolfe, also cited by appellant, the court similarly held that the accused need not

show why such juror was objectionable to him. Wolfe 178 S.W.2d at 281. However, the

same authority requires that “a further juror be presented whom he states to be

objectionable to him...” Id. In Moreno, the court noted:

       We also observe there is no support for the assertion that an objectionable
       juror served on the jury. While Wolfe does not require that a defendant show
       grounds for a challenge for cause nor show why a particular juror was
       objectionable, a defendant must at least state that a particular juror or jurors
       are objectionable to him, after he has exercised peremptory challenges on
       other prospective jurors who were disqualified and where his challenges for
       cause on such jurors were overruled.

Moreno v. State, 587 S.W.2d 405, 408 (Tex. Crim. App. 1979); see also Newbury v. State,

135 S.W.3d 22, 30-31 (Tex. Crim. App. 2004).



                                              8
       Appellant correctly cites Hernandez as reaffirming the court’s holding in Wolfe.

Hernandez v. State, 563 S.W.2d 947, 948 (Tex. Crim. App. 1978).                 However, the

Hernandez court observed: “Appellant notified the court that had he been granted an

additional challenge, he would have struck venireman Gary Carroll as being an

unacceptable juror. These facts place appellant squarely within the rule laid down in Wolfe

v. State . . . .” Here, unlike in Hernandez, appellant did not specify which veniremember he

found objectionable.

       Because appellant has not shown harm arising out of the trial court’s ruling, we need

not address whether in fact the ruling was erroneous. This issue is overruled.

                            4. Ineffective Assistance of Counsel

       By issues three, four, and five, appellant complains of ineffective assistance of

counsel. An appellate court reviews a trial court's ruling on a motion for mistrial and motion

for new trial using an abuse of discretion standard of review. Webb v. State, 232 S.W.3d

109, 112 (Tex. Crim. App. 2007) (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim.

App. 2004)). We view the evidence in the light most favorable to the trial court's ruling and

uphold the trial court's ruling if it was within the zone of reasonable disagreement. Id. We

do not substitute our judgment for that of the trial court, but rather we decide whether the

trial court's decision was arbitrary or unreasonable. Id. A trial court abuses its discretion

in denying a motion for new trial only when no reasonable view of the record could support

the trial court's ruling. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). We

must view the evidence in the light most favorable to the trial court's ruling and presume that

all reasonable factual findings that could have been made against the losing party were



                                              9
made against that losing party. Id. Thus, a trial court abuses its discretion in denying a

motion for new trial only when no reasonable view of the record could support the trial

court's ruling. Id.

       Review of an ineffective assistance of counsel claim is conducted under the

standards enunciated in Strickland v. Washington, 466 U.S. 668, 687-88 (1984);

Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The first requirement

under Strickland states: “When a convicted defendant complains of the ineffectiveness of

counsel’s assistance, the defendant must show that counsel’s representation fell below an

objective standard of reasonableness.” Strickland, 466 U.S. at 687-88. The second prong

sets out the general requirement that the defendant affirmatively prove prejudice, i.e., there

is a reasonable probability that, but for counsel’s errors, the result of the proceeding would

have been different. Id. at 694. When the record is silent as to defense counsel’s rationale

or strategy, appellant fails to overcome the presumption that trial counsel’s decision was

reasonable. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Thompson

v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); see Salinas v. State, 163 S.W.3d 734,

740 (Tex. Crim. App. 2005). Review of counsel's representation is highly deferential, and

the reviewing court indulges a strong presumption that counsel's conduct fell within a wide

range of reasonable representation. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App.

2001); Thompson, 9 S.W.3d at 813-14; Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim.

App. 1998); see also Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980). To

overcome the presumption of reasonable professional assistance, "any allegation of

ineffectiveness must be firmly founded in the record, and the record must affirmatively



                                             10
demonstrate the alleged ineffectiveness." Thompson, 9 S.W.2d at 813 (citing McFarland

v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)).

                                   5. Failure to Call Witness

       In his third issue, Appellant contends trial defense counsel was ineffective because

he failed to call a material witness. The witness, appellant’s sister, Emma Vaca, testified

at the hearing on the motion for new trial. She was at the Kohl’s store during the time

appellant and Garcia were arrested. She testified that she overheard one of the officers tell

Garcia that he saw a bruise on her side and that all she had to do was tell the officer that

appellant forced her to go there, and that appellant beat her, and the officer would “f... him

up.” Vaca was not contacted by defense counsel before trial and was stated to be available

for trial testimony.

       Unquestionably, counsel should interview available, beneficial defense witnesses.

Haynes v. State, 790 S.W.2d 824, 827 (Tex. App.–Austin 1990, no pet.) (counsel did not

interview available, beneficial defense witnesses and did not visit scene of offense).

Counsel has the duty to make an independent investigation of the facts and circumstances

of the case by seeking out and interviewing potential witnesses. Ex parte Welborn, 785

S.W.2d 391, 395-96 (Tex. Crim. App. 1990); Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex.

Crim. App. 1982); Duffy, 607 S.W.2d at 517; Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim.

App. 1986). Once counsel has investigated the facts and developed a defensive theory,

counsel is obligated to present sufficient available evidence in support of that defensive

theory. See Duffy, 607 S.W.2d at 518; Butler, 716 S.W.2d at 54-55; Shelton v. State, 841

S.W.2d 526, 527 (Tex. App.–Fort Worth 1992, no pet.). However, the burden is on the



                                             11
defendant to show that purported witnesses were available and that their testimony would

have been helpful to him. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (holding

that failure to call a witness may support ineffective assistance of counsel claim only if it is

shown witness was available and defendant would have benefitted from testimony); see

also Butler, 716 S.W.2d at 55. Here, the witness was purportedly available but the question

of benefit remains.

       Appellant argues Vaca’s testimony would have tended to disprove the credibility and

truthfulness of the co-defendant Garcia’s testimony.         The obvious problem with this

argument is that appellant’s trial counsel was the one who called Garcia. Defense counsel

should not be expected to impeach his own witness.

       Defense counsel testified that appellant did not give him his sister’s contact

information. The family member could have been impeached with her lack of knowledge of

appellant’s criminal past. Even had defense counsel known of Vaca, he could well reason

that her testimony would hurt and not help the defendant. Defense counsel specifically

testified that he did not think Vaca’s testimony would help appellant’s case. Further, Vaca

had a criminal record and was on probation for delivery and manufacture of cocaine and

felony theft. We presume defense counsel provided reasonable professional assistance

and that his actions might be considered sound trial strategy. Jackson, 877 S.W.2d at 771.

We may also impute implicit factual findings that support the trial judge's ultimate ruling on

that motion for new trial when such implicit factual findings are both reasonable and

supported in the record. Charles, 146 S.W.3d at 206. Here, the record supports a finding

that testimony by Vaca would not have been beneficial nor would have the result of the trial

have been different had she testified. Thus, we hold that the trial court did not abuse its

                                              12
discretion in overruling the motion for new trial on this basis.

                              6. Failure to Call Mitigation Witnesses

       Appellant next challenges his counsel’s effectiveness for failing to call witnesses to

mitigate punishment. Mike Wanzer provided an affidavit which was admitted in the hearing

on the motion for new trial. Wanzer’s affidavit stated that he had known appellant in a

working relationship for twenty years and that appellant was a trusted employee who was

not prone to violence and not known to carry a knife. The affidavit also stated Wanzer was

available and could have testified at the trial. Wazner did not appear live at the hearing.

       Appellant’s niece appeared and testified post-trial that she saw appellant every day,

that he was a good man who worked hard and was never violent toward her or her family.

She was aware of his prior convictions but not the family violence charges or evading arrest.

She indicated defense counsel’s office had contacted her, but through miscommunication,

they never called her back.

       Defense counsel testified that he talked with Wanzer, but did not think Wanzer’s

proposed testimony would have made an impact on the punishment. Counsel further

testified that he had the impression that appellant had just started working with Wanzer and

that Wanzer did not give him the impression that appellant had worked for him for years as

indicated in the affidavit. Defense counsel also testified that it seemed that Wanzer didn’t

want to testify. Counsel called Wanzer two other times but Wanzer did not call back.

Appellant points out that defense counsel initially called Wanzer “Bob Wanzer.” Defense

council then stated that “Wanzer” was the name he remembered. This confusion would

likely have been cleared up with a live witness. Because only Wanzer’s affidavit was used,

the factfinder may also infer from a party's failure to call an available, competent, and

                                              13
material witness, that the witness's testimony would be unfavorable. Albiar v. State, 739

S.W.2d 360, 363 (Tex. Crim. App. 1987); Torres v. State, 552 S.W.2d 821, 825 (Tex. Crim.

App. 1977).

       Defense counsel further testified that he had thirty years of legal experience. He

worked in the District Attorney’s office for almost eight years, and ninety percent of his

practice during the last fifteen years had been in criminal law. He further opined his actions

did not hurt appellant. According to counsel, his failure to call Wanzer as a witness was

part of a sound trial strategy so that the prosecution could not ask a series of “did you know”

type of questions. Defense counsel also stated that appellant would not give him any

names of family members. Appellant told him: “I got into this myself, I’m going to get out

of it myself.”

       The evidence at the motion for new trial hearing was contradictory. We review the

trial court’s denial of the motion by an abuse of discretion standard. Biagas v. State, 177

S.W.3d 161, 170. (Tex. App.–Houston [1st Dist.] 2005, pet. ref’d.). We may not substitute

our judgment for that of the trial court; rather, we review whether the court’s decision was

arbitrary or unreasonable. Charles, 146 S.W.3d at 208. The fact finder is the exclusive

judge of the credibility of witnesses and the weight to be afforded their testimony. See

Rodriguez v. State, 191 S.W.3d 428, 437 (Tex. App.–Corpus Christi 2006, pet ref’d). The

fact finder is free to accept one version of the facts, reject another, or reject all or any of a

witness's testimony. See id. We presume that all reasonable factual findings that could

have been made against the losing party, were made against him. Charles, 146 S.W.3d

at 211. Viewing the evidence in the light most favorable to the ruling, we hold the trial court



                                               14
did not abuse its discretion in overruling the motion for new trial on this basis. See Salazar

v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001); Charles, 146 S.W.3d at 208.

                            7. Failure to File Discovery Request

       In his final contention of ineffectiveness, appellant asserts that his trial counsel failed

to request until the day before trial all the evidence that the State intended to produce under

rule 404(b) of the Texas Rules of Evidence. TEX R. EVID . 404(b) (providing for admission

of other crimes, wrongs or acts). The State did not produce a printed version of appellant’s

extraneous offences at the hearing; however, the prosecutor stated at the hearing that she

intended to use evidence of family violence. Defense counsel was apparently not aware

of the conviction for family violence and asked for a continuance. The continuance was

denied, and the trial court ordered the State to turn over copies of the information and pen

packets.

       Appellant concludes that his trial attorney was thus unprepared for the punishment

phase of the trial. In reply, the State replies that it has an open file policy, and the

information sought was available to the defendant through the State’s files and through

public records.

       It is true as appellant argues, that appellant’s ability to review the State’s file does not

equate to the State’s indication that it will introduce such evidence in its case-in-chief. See

Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995). Still, as appellant also

admits, the mere failure to file an appropriate pretrial motion shall not be categorically

deemed ineffective assistance of counsel. Madden v. State, 911 S.W.2d 236, 241 (Tex.

App.–Waco 1995, pet. ref’d).

       Defense counsel testified at the motion for new trial hearing that he did file a specific

                                               15
discovery request for the surveillance tapes. The tape of the store’s interior was produced

without the necessity of a hearing. He was also provided access to the State’s file,

including appellant’s history and extraneous offenses. Given the time constraints, he saw

no need for a formal motion on the rule 404 matters. At the continuance hearing, defense

counsel stated that the State had already told him about appellant’s felony convictions, five

burglaries, and one possession of a controlled substance plus “a whole lot of

misdemeanors.” The one thing counsel seemed to be unaware of was a family violence

conviction pertaining to one of appellant’s former girlfriends.

       The State indicated they did not intend to use any of the prior convictions under rule

404(b). The prosecutor and defense counsel had previously conferred and the prosecutor

stated that she had furnished all the rule 404(b) information. Defense counsel agreed,

except for the family violence matter. The record indicates that the seeming disagreement

in front of the judge was an apparent misunderstanding that the family violence would

somehow be used under 404(b). The prosecutor stated she had no intent to use that matter

under rule 404(b). Rather, the State intended to use this conviction in the punishment

phase.

       Defense counsel also stated he was attempting to try the case as soon as possible

because appellant was in jail. Further, it is clear from the record that defense counsel

thought he had been furnished all the information from the State’s file and had no reason

to suspect that the State was hiding any information. Thus, when he discovered he had not

been told of the family violence conviction, he immediately moved for a continuance. He

was then furnished this remaining bit of information in writing, even though it was not going

to be used under rule 404(b).

                                             16
       The State argues that appellant has not shown that having some information earlier

through some formal procedure would probably have caused a different outcome to the

case. We agree. The record supports an implied finding by the trial judge that defense

counsel had in fact already discovered the rule 404(b) evidence without the necessity of

filing a formal motion. The only evidence of which he was unaware did not come under the

purview of rule 404(b). See TEX R. EVID . 404(b). Thus, even a formal motion would not

have necessarily have provided the information about the family violence conviction.

       The record supports an implied finding that defense counsel used reasonable efforts

to prepare for the punishment phase. Appellant failed to shoulder his burden to show both

a deficient effort on the part of counsel and a reasonable probability of a different result.

Strickland, 466 U.S. at 694. We accordingly hold that the trial court did not abuse its

discretion by overruling the motion for new trial on this basis. We overrule issues three,

four, and five.

                                       8. Conclusion

       The judgment of the trial court is affirmed.


                                                        DON WITTIG,
                                                        Justice



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

Memorandum Opinion delivered and filed
this the 30th day of May, 2008.




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