                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-018-CR


MANUEL ACOSTA GRIJALVA                                             APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

                                    ------------

      Appellant Manuel Acosta Grijalva appeals his conviction and sentence for

aggravated sexual assault of a child under fourteen. We affirm.

      The parties are familiar with the facts of this case and the law is well-

settled. In a single point on appeal, appellant contends that his trial lawyer

provided constitutionally ineffective assistance of counsel because he failed to



      1
          … See Tex. R. App. P. 47.4.
obtain a “mitigation specialist” to assist in the investigation and handling of his

case. He asserts that because he entered an open plea to the jury, his defense

strategy was obviously to persuade the jury to assess a lenient sentence, and

that it was, therefore, incumbent upon his lawyer to engage a mitigation expert

to explore appellant*s background and life circumstances to uncover evidence

that could be presented to the jury in hopes of reducing the sentence the jury

might impose.

      We apply a two-pronged test to ineffective assistance of counsel claims. 2

First, appellant must show that counsel’s performance was deficient, which

requires a showing that counsel made such serious errors that he or she was

not functioning as the “counsel” guaranteed by the Sixth Amendment.3

Counsel’s performance is only deficient if it fell below an objective standard of

reasonableness measured by prevailing professional norms.4 The record must

be sufficiently developed to overcome a strong presumption that counsel




      2
       … 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).
      3
          … Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
      4
          … Id. at 688–89, 104 S. Ct. at 2065.

                                        2
provided reasonable assistance. 5 Our scrutiny of counsel’s performance must

be highly deferential, making every effort to eliminate the distorting effects of

hindsight.6

      Second, appellant must show that counsel’s deficient performance

prejudiced the defense; this requires a showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial.7 Appellant must show that

there is a reasonable probability that, but for counsel’s deficiency, the result of

the trial would have been different.8

      A claim of ineffective assistance of counsel must be firmly grounded in,

and supported by, the record.9 When the record is silent as to possible trial

strategies employed by defense counsel, we will not speculate on the reasons

for those strategies.10




      5
     … Bone v. State, 77 S.W.3d 828, 833 & n.13 (Tex. Crim. App. 2002);
Thompson, 9 S.W.3d at 813–14.
      6
          … Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
      7
          … Id. at 687, 104 S. Ct. at 2064.
      8
          … Id. at 694, 104 S. Ct. at 2068.
      9
       … Thompson, 9 S.W.3d at 814; Jackson v. State, 973 S.W.2d 954, 961
(Tex. Crim. App. 1998).
      10
           … See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

                                        3
      There is a substantial risk of failure when a claim of ineffective assistance

of counsel is brought on direct appeal. 11 “Under normal circumstances, the

record on direct appeal will not be sufficient to show that counsel’s

representation was so deficient and so lacking in tactical or strategic decision

making as to overcome the presumption that counsel’s conduct was reasonable

and professional.” 12

      This case demonstrates the “inadequacies inherent in evaluating

ineffective assistance claims on direct appeal.” 13 Appellant did not file a motion

for new trial to afford the trial court a chance to hold a hearing and inquire into

the reasons for trial counsel’s acts or omissions or the extent to which counsel

investigated appellant’s background and life circumstances to uncover any

evidence that might have been offered in mitigation of the acts appellant

perpetrated upon his victim. Nor is there any evidence in the record indicating

that any such mitigation evidence existed to be discovered by a mitigation

specialist had appellant obtained one.14 Given the record before us, there is


      11
           … Thompson, 9 S.W.3d at 813.
      12
           … Bone, 77 S.W.3d at 833.
      13
       … Patterson v. State, 46 S.W.3d 294, 306 (Tex. App.—Fort Worth
2001, no pet.).
      14
     … See Teixeira v. State,               89   S.W.3d   190,    193–94     (Tex.
App.—Texarkana 2002, pet. ref*d).

                                        4
nothing to rebut the presumption of reasonably effective assistance of counsel,

and we will not speculate to the contrary. 1 5   Because appellant has failed to

meet the first prong of Strickland, we overrule his sole point.

      Having overruled appellant’s sole point, we affirm the trial court’s

judgment.


                                                   PER CURIAM

PANEL: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.

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

DELIVERED: October 16, 2008




      15
           … Jackson, 877 S.W.2d at 771; see id.

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