Affirmed and Memorandum Opinion filed February 7, 2013.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-12-00047-CR



               EDGAR SALVADOR RODRIGUEZ, Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 239th District Court
                          Brazoria County, Texas
                        Trial Court Cause No. 65023



                 MEMORANDUM OPINION

      Appellant, Edgar Salvador Rodriguez, appeals his conviction for robbery. In
a single issue, appellant contends he was denied effective assistance of counsel.
We affirm.
                                   I. BACKGROUND

      At trial, the complainant, Navin Maharaj, testified as follows. He placed an
ad on Craig’s List to sell pit bull puppies. He was contacted by a man expressing
an interest in buying four puppies. They arranged to meet at a mall in Lake
Jackson, Texas on the night of December 28, 2010. Appellant was the driver of a
vehicle containing three other men, which stopped next to Maharaj’s truck in the
parking lot. Maharaj stood outside appellant’s window while they discussed the
puppies. During this time, the three passengers exited the vehicle and looked at the
puppies in the back of Maharaj’s truck. Appellant told Maharaj they would buy
the puppies, and appellant and the passengers discussed how they would pay for
the purchase. As Maharaj walked toward his truck to retrieve the puppies, the
passengers began beating and kicking Maharaj. Appellant never exited the vehicle
and did not assault Maharaj. Maharaj eventually escaped and ran into a restaurant
for assistance. When a police officer escorted Maharaj back to his truck, the
puppies’ crate was on the ground, but the puppies were gone. They were never
returned to Maharaj.

      A police officer developed appellant as a suspect after investigating
information regarding his vehicle. Appellant voluntarily appeared at the police
station for an interview. In the interview, appellant stated he was at the mall earlier
on the day of the incident but did not participate in the robbery and instead
purchased one of the puppies from Jose Martinez.              Subsequently, Maharaj
identified appellant and one of the passengers in a police photograph array. At
trial, Maharaj also identified appellant as the driver.

      The State presented testimony from Jose Martinez, one of the perpetrators,
who provided the following account. Appellant and the other two men “plotted”
the robbery. Martinez agreed to participate because he needed money. Martinez

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beat Maharaj. Another perpetrator took the crate and released the puppies into
appellant’s vehicle. The empty crate was left at the scene. Appellant drove the
perpetrators away from the scene. Each perpetrator took a puppy; Martinez sold
one for $150 but did not know what happened to the one appellant took.

       Appellant testified on his own behalf and claimed the following. He was
present when the other three men discussed pit bull puppies, but they mentioned
nothing about a robbery. They asked appellant to drive, but he refused. Appellant
was at the mall earlier in the day but did not participate in the robbery. Martinez
falsely accused appellant based on anger that appellant refused to drive the men to
the mall.     Appellant acknowledged the perpetrators’ vehicle, which Maharaj
described as having distinctive features such as “Lamborghini” style doors and a
“Texas Showdown” decal, was owned by appellant’s father.

       Appellant was charged with robbery by causing bodily injury. See Tex.
Penal Code Ann. § 29.02(a)(1) (West 2011).                    The trial court submitted an
instruction on the law of parties in the jury charge. A jury convicted appellant of
the offense and assessed punishment at five years’ confinement and a fine. In an
amended motion for new trial, appellant raised an ineffective-assistance-of-counsel
complaint. After a hearing, during which appellant presented testimony from his
trial counsel, the trial court denied the motion.

                                         II. ANALYSIS

       In his sole issue, appellant contends he was denied effective assistance of
counsel.1 Because appellant raised this claim via motion for new trial, we review
his contention as a challenge to denial of the motion for new trial. We review
       1
          At the outset of his brief, appellant recites his sole issue as a challenge to denial of a
motion to suppress. It appears this recitation was inadvertent because he presents only an
ineffective-assistance claim in the body of his brief. He has waived any complaint related to a
motion to suppress by failing to present supporting argument. See Tex. R. App. P. 38.1(i).

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denial of a motion for new trial under an abuse-of-discretion standard. Charles v.
State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004), superseded in part on other
grounds by Tex. R. App. P. 21.8(b). 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 ruling. Id.

      To prevail on an ineffective-assistance claim, an appellant must prove (1)
counsel’s representation fell below the objective standard of reasonableness and
(2) there is a reasonable probability that, but for counsel’s deficiency, the result of
the proceeding would have been different. Strickland v. Washington, 466 U.S.
668, 687, 694 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005). In evaluating the first component, a reviewing court must not second-guess
legitimate strategic or tactical decisions made by trial counsel in the midst of trial,
but instead must indulge a strong presumption counsel’s conduct fell within the
wide range of reasonable professional assistance. Strickland, 466 U.S. at 689;
State v. Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008). Absent a record
sufficiently demonstrating counsel’s conduct was not the product of a strategic or
tactical decision, a reviewing court should presume counsel’s performance was
constitutionally adequate “‘unless the challenged conduct was so outrageous that
no competent attorney would have engaged in it.’” Morales, 253 S.W.3d at 696–97
(quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).
      During trial, the following exchange occurred when the State examined Jose
Martinez regarding his interaction with appellant after they met:

      Q.     Did you-all start hanging out?
      A.     Yes, sir.
      Q.     What kind of things would you-all do?


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      A.     Really just drink, smoke.
      Q.     Smoke what?
      A.     Marijuana.
      Appellant complains trial counsel failed to object to, or request an
instruction to disregard, the testimony that appellant had previously smoked
marijuana. According to appellant, the testimony would have been inadmissible
because it was irrelevant, it constituted evidence of an extraneous offense offered
solely to prove appellant committed the robbery in conformity with his character,
and any probative value was substantially outweighed by the danger of unfair
prejudice. See Tex. R. Evid. 401, 402, 404(b), 403.

      Appellant asserts his trial counsel admitted at the motion-for-new-trial
hearing that he lacked any strategy for failing to object to the testimony at issue.
Trial counsel generally suggested he might have deliberately refrained, for
impeachment purposes, from objecting to evidence solely regarding Martinez’s
“bad” acts but counsel could not conceive of a strategy for permitting the jury to
hear that appellant was also involved in these “bad” acts. Nevertheless, we need
not decide whether appellant satisfied the first prong of Strickland because we
conclude appellant failed to satisfy the second prong.
      Appellant acknowledges the evidence placing him at the scene but claims
the evidence was weak relative to his participation in the robbery; thus, the
testimony he previously used marijuana contributed to his conviction. In support,
appellant asserts that Maharaj’s testimony showed, at most, appellant was the
driver of the vehicle.    Appellant further contends the only evidence of his
participation in the robbery was provided by the accomplice, Martinez, who had
motive to “assist the State” because a robbery charge was pending against him.

      However, at the time of appellant’s trial, Martinez had been granted only use


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immunity, precluding the State from offering his testimony in a subsequent
prosecution against Martinez; he had not been granted immunity from prosecution.
Moreover, we disagree with appellant’s characterization of the evidence as weak
relative to appellant’s participation in the robbery. Because appellant and Martinez
both testified, the jury was able to evaluate their credibility. In fact, Martinez’s
admitted involvement in the robbery and assault of Maharaj could have contributed
to the jury’s determination he was truthful because he was willing to cast himself
in a negative light.

      Additionally, the trial court instructed the jury on the accomplice-witness
rule: the jury could not convict appellant unless it believed Martinez’s testimony
and it was corroborated by other evidence tending to connect appellant to the
offense. The following evidence or inferences supported Martinez’s testimony that
appellant was a participant: (1) the jury could have rationally rejected the
proposition that one person in the vehicle mistakenly believed the men were
actually purchasing puppies while the other three men planned to rob Maharaj; i.e.,
that appellant was an unwitting driver and the other men did not discuss the
planned robbery before they all three exited the vehicle in concert; (2) it is a
rational inference appellant remained in the vehicle to serve as getaway driver,
considering the other three men all exited the vehicle; (3) appellant did drive away
from the scene with the stolen puppies; (4) appellant did not return the puppy he
allegedly purchased after the police officer advised him it had been stolen; (5) the
officer went to appellant’s home several times attempting to contact him but
received no answer and there was no indication of a dog residing at the home; and
(6) appellant was untruthful in his police interview and at trial by claiming he was
not even present at the scene when Maharaj identified him as the driver and the
distinctive vehicle (with “Lamborghini” style doors and a “Texas Showdown”


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decal) used in the offense was owned by appellant’s father.

      Appellant also emphasizes Maharaj’s testimony that appellant engaged in a
discussion about payment for the puppies as allegedly demonstrating he was
unaware of the intended robbery. However, even the passengers who undisputedly
robbed Maharaj first discussed payment for the puppies, thus supporting a rational
inference the discussion was a ruse and appellant’s involvement in the discussion
did not negate his participation in the robbery.

      Based on the strength of the State’s evidence, we conclude a brief reference
to the fact appellant had smoked marijuana did not persuade the jury he committed
the robbery or contribute to its finding of guilt. Marijuana use is an offense of a
different character and degree than robbery, particularly a robbery effected by
causing bodily injury. We cannot conclude the jury translated the fact appellant
had used marijuana into an assumption he must have also committed the robbery.

      In summary, we conclude there is not a reasonable probability that, but for
counsel’s failure to object to, or request an instruction to disregard, the testimony
regarding marijuana use, the result of the proceeding would have been different.
See Strickland, 466 U.S. at 694; Salinas, 163 S.W.3d at 740. Therefore, the trial
court did not abuse its discretion by rejecting appellant’s ineffective-assistance-of-
counsel claim and denying his motion for new trial.
      We overrule appellant’s sole issue and affirm the trial court’s judgment.


                                              /s/   John Donovan
                                                    Justice

Panel consists of Justices Boyce, McCally, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).


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