                                     NUMBER 13-05-007-CR

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


AARON VEGA,                                                                                   Appellant,

                                                      v.

THE STATE OF TEXAS,                                                                             Appellee.


                      On appeal from the 92nd District Court of
                              Hidalgo County, Texas.


                  MEMORANDUM OPINION ON REMAND

                   Before Justice Yañez, Garza, and Vela
              Memorandum Opinion on Remand by Justice Yañez

      This case is before us on remand from the Texas Court of Criminal Appeals.1 A jury

found appellant, Aaron Vega, guilty of the offenses of capital murder and aggravated

robbery.2 Vega was sentenced to life imprisonment for the capital murder charge and thirty


      1
          See Vega v. State, 267 S.W .3d 912, 916 (Tex. Crim . App. 2008).

      2
          See T EX . P EN AL C OD E A N N . § 19.03(a) (Vernon Supp. 2009), § 29.03(a)(1) (Vernon 2003).
years for the aggravated robbery charge. By three issues, Vega contends that: (1) the

evidence was legally and factually insufficient to support his conviction of capital murder;

(2) his conviction of aggravated robbery is barred by double jeopardy; and (3) he received

ineffective assistance of counsel.

         On original submission, this Court held that the evidence was factually insufficient

to support Vega's conviction for capital murder as a party under section 7.02(a)(2) of the

penal code; however, we did not determine whether the evidence was factually sufficient

under section 7.02(b).3 Upon the State's petition for discretionary review, the court of

criminal appeals held that a hypothetically correct jury charge would have authorized the

jury to convict Vega of capital murder as a party pursuant to section 7.02(a)(2) or section

7.02(b); therefore, it was error not to address whether the evidence was factually sufficient

pursuant to section 7.02(b).4 The court vacated our judgment and remanded the case for

an analysis of the factual sufficiency of the evidence under section 7.02(b) and of Vega's

two remaining issues if we found the evidence factually sufficient under that theory of

liability.5 We reform the judgment and affirm as reformed.

                                         I. RELEVANT FACTS

         Vega was indicted and convicted of the murder of Ricardo Cantu. At trial, the State

presented the testimony of, among others, Samuel Lopez, Emmanuel De Leon, and Sara

Liñan.

         Lopez testified that Cantu told him he wanted to buy thirty pounds of marihuana.

         3
         See Vega v. State, 198 S.W .3d 819, 826 (Tex. App.–Corpus Christi 1997), vacated and remanded
by Vega, S.W .2d at 916; see also T EX . P EN AL C OD E A N N . § 7.02(a)(2), (b) (Vernon 2003).

         4
             Vega, 267 S.W .2d at 916.

         5
             Id.

                                                  2
Lopez told Salvador Salas what Cantu said, and they went to Vega's house. Lopez stated

that while at Vega's house, he heard Vega say that he wanted to rob Cantu. De Leon

testified that earlier that day, Vega told him about the "robbery that they were going to do"

involving a "guy that had a lot of weed." De Leon testified that Vega asked him if he

wanted to assist with the robbery and he agreed.6 Vega informed De Leon that some men

from Mexico would be arriving "and plan everything to steal the weed from the guy." De

Leon stated that "he just told me they were professionals in these things."

       According to De Leon, when Lopez and Salas arrived at Vega's house, Vega asked

them if they wanted to participate in the robbery. When the men from Mexico arrived at

Vega's house, Lopez heard Vega tell them that he wanted to rob Cantu. Lopez testified

that then a "little black car got there" and "[t]hey opened the trunk and pulled out some

guns," and "passed them out." However, Lopez was unaware of whether Vega received

a gun. When the State asked Lopez, "[W]ho was the main one doing the planning to rob

[Cantu]?", Lopez replied, "Aaron Vega."

       De Leon stated that Vega, the men from Mexico, and Salas finalized the plan. He

testified that "[t]hey were going to rob this man. They were going to rob some weed from

him." De Leon testified that Salas and the Mexican men "went to rob the guy." De Leon

stated that he believed that each man had a gun. According to De Leon, the men returned

approximately fifteen minutes later, talked to Vega, and then the Mexican men left. Vega

informed De Leon that "the man" was killed, and Salas, Vega, and De Leon drove by the

crime scene. De Leon testified that Salas recounted the shooting, stating that when they

arrived at the scene they pointed their guns at Cantu, who was sitting in his car. Salas told


       6
           De Leon claim ed that he was not at the scene when Cantu was killed.

                                                    3
De Leon that Cantu said that he was not scared, was not going to give them anything, and

attempted to drive away. The men allegedly then began shooting at Cantu. Salas told De

Leon that when he saw the "action," he also began shooting his gun.

        De Leon testified that he, Salas, and Vega took the guns to Liñan's house "[t]o hide

them there so that nobody could find them there." Lopez stated that a few days after the

shooting he spoke to Vega. Lopez testified as follows:

        [The State]: [W]hen you went to pick up [Vega] at his girlfriend [Liñan's]
                     house, what did you-all talk about?

        [Lopez]:         I just asked him who had shot him.

        [The State]: And what did he tell you?

        [Lopez]:         That those guys were professionals, that that's what they did
                         for a living.

        [The State]: What guys.

        [Lopez]:         The Mexicans.

        During her testimony Liñan admitted that she told police that she heard Vega tell

Salas that "they were just supposed to scare the guy, not kill him." Liñan recanted her

statement to police and denied telling police that: Vega told her that they were going to rob

a man named "Rick"; Vega brought the guns to her house; Vega left her house with the

guns; Vega told her that he "got rid of the guns and gave them back to the guys"; and when

she asked Vega what they planned to do with the guns, Vega told her that "they would

probably use them again." However, Liñan agreed that these statements were included

in her signed written statement to police.7


        7
         The jury was instructed that Liñan's testim ony regarding her statem ent was adm itted for the purpose
of im peaching her, and that, if she was im peached, the statem ent could not be considered as evidence of
Vega's guilt.

                                                      4
                              II. FACTUAL SUFFICIENCY OF THE EVIDENCE8

        By his first issue, appellant contends that the evidence is factually insufficient to

support his conviction of capital murder under the law of parties pursuant to section 7.02(b)

of the penal code. Specifically, Vega argues that the evidence supporting his guilt is

"greatly outweighed" by the following: (1) "the evidence that the conspiracy to rob never

contemplated murder"; (2) he was not present when Cantu was shot; (3) no evidence

exists that he anticipated the murder; and (4) the spontaneity of the killing outweighs any

evidence of guilt.

A. Standard of Review and Applicable Law

        In a factual sufficiency review, we review the evidence in a neutral light to determine

whether the evidence is so weak that the jury's verdict seems clearly wrong and manifestly

unjust or against the great weight and preponderance of the evidence.9 This Court will not

reverse the jury's verdict unless we can say, with some objective basis in the record, that

the great weight and preponderance of the evidence contradicts the verdict.10

        Under the law of parties, "[a] person is criminally responsible as a party to an

offense if the offense is committed by his own conduct, by the conduct of another for which




        8
           In our original opinion, we found that the evidence showed that "Vega put a plan in place to rob
Cantu of m ari[h]uana. He was present when the assailants m et at his residence and arm ed them selves for
purposes of perpetrating a robbery against Cantu," who was "ultim ately shot and killed." Vega v. State, 198
S.W .3d at 826. W e concluded that "the jury could have rationally inferred from the evidence that Vega
intended to prom ote or assist in the m urder of Cantu when he did nothing to stop the assailants from arm ing
them selves, thereby rejecting the defense theory that he intended solely a robbery." Id. at 825. W e concluded
that the evidence was legally sufficient to support Vega's conviction of capital m urder under section 7.02(a)(2).
Id.

        9
            W atson v. State, 204 S.W .3d 404, 414-15 (Tex. Crim . App. 2006).

        10
             Id. at 417.

                                                        5
he is criminally responsible, or by both."11 A party is criminally responsible for the conduct

of another "[i]f, in the attempt to carry out a conspiracy to commit one felony, another

felony is committed by one of the conspirators, all conspirators are guilty of the felony

actually committed, though having no intent to commit it, if the offense was committed in

furtherance of the unlawful purpose and was one that should have been anticipated as a

result of the carrying out of the conspiracy."12 A "person commits criminal conspiracy if,

with intent that a felony be committed: (1) he agrees with one or more persons that they

or one or more of them engage in conduct that would constitute the offense; and (2) he or

one or more of them performs an overt act in pursuance of the agreement."13

       A person may be found guilty of capital murder under the law of parties.14 A person

commits capital murder if he or she intentionally or knowingly causes the death of an

individual while in the course of committing or attempting to commit, among other things,

robbery.15 "In determining whether a defendant participated in an offense as a party, the

fact finder may examine the events occurring before, during, and after the commission of

the offense and may rely on actions of the defendant that show an understanding and

common design to commit the offense."16 Furthermore, "[c]ircumstantial evidence may be

used to prove one is a party to an offense."17

       11
       T     EX .   P EN AL C OD E A N N . § 7.01(a) (Vernon 2003).

       12
            Id. § 7.02(b).

       13
            Id. § 15.02(a) (Vernon 2003).

       14
            Johnson v. State, 853 S.W .2d 527, 535 (Tex. Crim . App. 1992) (en banc).

       15
       T     EX .   P EN AL C OD E A N N . § 19.02(b)(1) (Vernon 2003), § 19.03(a)(2).

       16
            Frank v. State, 183 S.W .3d 63, 73 (Tex. App.–Fort W orth 2005, pet. ref'd).

       17
            Cordova v. State, 698 S.W .2d 107, 111 (Tex. Crim . App. 1985).

                                                            6
B. Analysis

        First, section 7.02(b) does not require the State to prove that Vega contemplated

the murder. The State had to provide evidence that: (1) Vega and the co-conspirators

engaged in an attempt to carry out a conspiracy to commit robbery; (2) in that attempt, the

co-conspirators committed murder; (3) the murder was committed in furtherance of the

robbery; and (4) the murder was an offense that should have been anticipated as a result

of carrying out the robbery.18 Next, a defendant need not have been physically present in

order to be held criminally responsible as a party to murder under section 7.02(b).19

        Finally, the State presented evidence that when Salas, De Leon, and the Mexican

men arrived at his house, Vega asked them to assist him with robbing Cantu. There was

evidence presented that Vega was the person who planned the robbery and asked

"professionals" to assist with the robbery. When asked who killed Cantu, Vega stated that

the "professionals" committed the murder and "that that's what they did for a living." There

was evidence that Vega was present when the men acquired the guns and then hid them,

supporting an inference that Vega knew that the men were armed when they committed


        18
             See T EX . P EN AL C OD E A N N . § 7.02(b).

        19
           See Longoria v. State, 154 S.W .3d 747, 755 n.6 (Tex. App.–Houston [14th Dist.] 2004, pet. ref'd)
(concluding that "a defendant [accused of capital m urder] need not have been physically present in order to
be held responsible as a party, either under section 7.02(a)(2) . . . or under section 7.02(b)") (citing Otto v.
State, 95 S.W .3d 282, 284-85 (Tex. Crim . App. 2003) (affirm ing conviction as a party under section 7.02(a)(2),
even though defendant not present at scene of crim e); Cienfuegos v. State, 113 S.W .3d 481, 489-90 (Tex.
App.–Houston [1st Dist.] 2003, pet. ref'd) (affirm ing capital m urder conviction based on section 7.02(b) even
though defendant was not present at scene of the crim e); Hernandez v. State, 52 S.W .3d 268, 278-79 (Tex.
App.–Corpus Christi 2001, no pet.) (holding that presence at the scene is not required under section
7.02(a)(2)); Pike v. State, 758 S.W .2d 357, 362 (Tex. App.–W aco 1988) (holding defendant's absence at the
scene of the crim e did not absolve him of crim inal liability under section 7.02(b)), vacated on other grounds,
772 S.W .2d 130 (Tex. Crim . App. 1989); see also Lewis v. State, No. 14-98-01348-CR, 2001 Tex. App. LEXIS
656, at *13 (Tex. App.–Houston [14th Dist.] Feb. 1, 2001, no pet.) (not designated for publication) ("A
defendant m ay be held crim inally responsible even if he was not present during the offense.") (citing
Thompson v. State, 697 S.W .2d 413, 417 (Tex. Crim . App. 1985); W ebber v. State, 757 S.W .2d 51, 55-56
(Tex. App.–Houston [14th Dist.] 1988, pet. ref'd)).

                                                            7
or attempted to commit the robbery.

        Thus, the evidence showed that Vega conspired with the men to commit robbery,

he was present when the men acquired guns for the robbery, during the course of the

robbery, Cantu was shot and killed, and the men shot Cantu when he attempted to drive

away. Based on Vega's knowledge that the men had guns when they went to commit the

robbery, the jury could have reasonably inferred20 that Vega anticipated or should have

anticipated that the murder would occur as a result of the robbery.21 Viewing the evidence

in a neutral light, we cannot conclude that the evidence is so weak that the jury's verdict

seems clearly wrong and manifestly unjust or against the great weight and preponderance

of the evidence.22 Therefore, the evidence was factually sufficient to support appellant's

conviction of capital murder as a party under section 7.02(b) of the penal code. We

overrule appellant's first issue.

                                         III. DOUBLE JEOPARDY

        By his second issue, Vega contends that double jeopardy bars the aggravated

robbery conviction. The State concedes that Vega's convictions for both offenses of

murder and aggravated robbery are barred by the doctrine of double jeopardy because

aggravated robbery is a lesser-included offense of capital murder.


        20
           See Benavides v. State, 763 S.W .2d 587, 588-89 (Tex. App.–Corpus Christi 1988, pet. ref'd) ("The
factfinder, however, m ay draw reasonable inferences and m ake reasonable deductions from the evidence as
presented to it within the context of the crim e.").

        21
          Longoria, 154 S.W .3d at 756 (concluding that the appellant who conspired with others to com m it
robbery should have anticipated that m urder could occur where the appellant provided a handgun for the
robbery); W illiams v. State, 974 S.W .2d 324, 330 (Tex. App.–San Antonio 1998, pet. ref'd) (concluding that
the evidence was factually sufficient to support a finding that a m urder com m itted in course of pawn shop
robbery was foreseeable to the appellant where evidence showed at least one of five conspirators arrived at
scene arm ed with a gun and the jury could have inferred the appellant had knowledge that the co-conspirator
had a gun).

        22
             See W atson, 204 S.W .3d at 414-15.

                                                     8
A. Preservation

        Vega failed to raise any double jeopardy objections before the charges against him

were submitted to the jury. However, a double jeopardy claim may be raised for the first

time on appeal when the undisputed facts show that a double jeopardy violation is clearly

apparent on the face of the record and when enforcement of the usual rules of procedural

default serve no legitimate state interest.23 In the present case, Vega was tried on one

count of capital murder and one count of aggravated robbery in the same proceeding.

Aggravated robbery has been found to be a lesser-included offense of capital murder.24

Therefore, the undisputed facts show that a double jeopardy violation is clearly apparent

on the face of this record. Moreover, no legitimate state interest will be served by

enforcement of the usual rules of procedural default because, even if we find that a double

jeopardy violation occurred, a retrial will not be required.25 We therefore review the record

to determine if a double jeopardy violation occurred.

B. Analysis

        In a two-count indictment, Vega was charged with capital murder and aggravated

robbery. The indictment alleged that Vega committed capital murder by "intentionally

caus[ing] the death of an individual, namely, Ricardo Cantu, by shooting the victim with a


        23
          Gonzalez v. State, 8 S.W .3d 640, 643 (Tex. Crim . App. 2000) (en banc); Saldana v. State, 287
S.W .3d 43, 56 (Tex. App.–Corpus Christi 2008, pet. ref'd).

        24
           See Quintanilla v. State, 40 S.W .3d 576, 579 (Tex. App.–San Antonio 2001, pet. ref'd) ("A review
of the statutory elem ents of the offenses with which Quintanilla was charged reveals that aggravated robbery
is a lesser included offense of capital m urder, and thus the two offenses are the sam e for double jeopardy
purposes."); Queen v. State, 940 S.W .2d 781, 784-85 (Tex. App.–Austin 1997, pet. ref'd) (stating that "every
elem ent of the alleged aggravated robbery with serious bodily injury, including death, was included within the
alleged capital m urder in the course of robbery, and it was im possible for the State to prove the latter offense
without also proving the form er").

        25
           See Saldana, 287 S.W .3d at 56 (noting that if there was an actual double jeopardy violation, the
"conviction would m erely be reform ed to delete the duplicated punishm ent").

                                                        9
firearm, and the defendant [Vega] was then and there in the course of committing or

attempting to commit the offense of Robbery of Ricardo Cantu."26 The indictment further

alleged that Vega committed aggravated robbery by "then and there, while in the course

of committing theft of property and with intent to obtain or maintain control of said property,

intentionally and knowingly cause[d] serious bodily injury to Ricardo Cantu by shooting the

victim with a firearm."

         To convict Vega of capital murder as charged in the indictment, the State had to

prove all of the elements of aggravated robbery.27 "When the same conduct violates

different criminal statutes, the two offenses are the same for double jeopardy purposes if

one of the offenses contains all the elements of the other."28 Moreover, "greater inclusive

and lesser included offenses are the same for jeopardy purposes."29 Therefore, because

all of the elements of aggravated robbery were included within the capital murder charge

as alleged in the indictment, we presume that the two offenses were the same for double

jeopardy purposes.30

         Therefore, we conclude that Vega's conviction and punishment for both capital


         26
             A person com m its the offense of robbery if in the course of com m itting theft and with intent to obtain
or m aintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury. T EX . P ENAL
C OD E A N N . § 29.02(a) (Vernon 2003).

         27
              See Quintanilla, 40 S.W .3d at 579; Queen, 940 S.W .2d at 784-85.

         28
              Saldana, 287 S.W .3d at 57 (citing Belt v. State, 227 S.W .3d 339, 344 (Tex. App.–Texarkana 2007,
no pet.)).

         29
              Id. (citing Parrish v. State, 869 S.W .2d 352, 354 (Tex. Crim . App. 1994)).

         30
            See Quintanilla, 40 S.W .3d at 579 ("[I]f all the elem ents of one statutory offense are contained
within the other, it is presum ed that the two offenses are the sam e and that the Legislature did not intend to
authorize punishm ent for both.") (citing W halen v. United States, 445 U.S. 684, 693-94 (1980)); Queen, 940
S.W .2d at 785-86 (stating that because all elem ents of aggravated robbery were included within capital
m urder as the two offenses were alleged in the indictm ent, it is presum ed that the two offenses were the sam e
for double jeopardy purposes).

                                                         10
murder and aggravated robbery violated the multiple punishment component of the Fifth

Amendment's double jeopardy clause.31 We sustain Vega's second issue. The proper

remedy in the case of a double jeopardy violation is to reform the judgment by vacating the

lesser conviction and sentence.32 Accordingly, we reform the judgment to delete the

conviction for the offense carrying the less severe punishment, which in this case is the

conviction for aggravated robbery.

                             IV. INEFFECTIVE ASSISTANCE OF COUNSEL

       By his third issue, Vega contends that trial counsel rendered ineffective assistance

by eliciting unfavorable evidence and by failing to object to the jury charge and indictment.

A. Standard of Review and Applicable Law

       Ineffective assistance of counsel claims are evaluated under the two-part test

articulated by the United States Supreme Court in Strickland v. Washington.33 The

Strickland test requires the appellant to show that counsel's performance was deficient, or

in other words, that counsel's assistance fell below an objective standard of

reasonableness.34 Assuming appellant has demonstrated deficient assistance, he must

then show that there is a reasonable probability that, but for counsel's errors, the result

would have been different.35 In determining the validity of appellant's claim of ineffective

assistance of counsel, "any judicial review must be highly deferential to trial counsel and


       31
            See Queen, 940 S.W .2d at 785-86.

       32
            See Saldana, 287 S.W .3d at 58.

       33
          See Goodspeed v. State, 187 S.W .3d 390, 392 (Tex. Crim . App. 2005) (citing Strickland v.
W ashington, 466 U.S. 668, 687 (1984)); Thompson v. State, 9 S.W .3d 808, 812 (Tex. Crim . App. 1999).

       34
            Thompson, 9 S.W .3d at 812; see Strickland, 466 U.S. at 687.

       35
            Thompson, 9 S.W .3d at 812; see Strickland, 466 U.S. at 694.

                                                    11
avoid the deleterious effects of hindsight."36

        The burden is on the appellant to prove ineffective assistance of counsel by a

preponderance of the evidence.37 Appellant must overcome the strong presumption that

counsel's conduct fell within the wide range of reasonable professional assistance and that

his actions could be considered sound trial strategy.38                      A reviewing court will not

second-guess legitimate tactical decisions made by trial counsel.39 Counsel's effectiveness

is judged by the totality of the representation, not by isolated acts or omissions.40

Furthermore, an allegation of ineffectiveness must be firmly founded in the record, and the

record must affirmatively demonstrate the alleged ineffectiveness.41

B. Analysis

        First, Vega argues that defense counsel's use of the word "pistoleros" to describe

the Mexican men was prejudicial and bolstered the State's theories of prosecution.

Although Vega states that the word "pistoleros" literally means "gun totter [sic]" or "gun


        36
             Thompson, 9 S.W .3d at 813.

        37
             Id.

        38
          See Strickland, 466 U.S. at 689; Jaynes v. State, 216 S.W .3d 839, 851 (Tex. App.–Corpus Christi
2006, no pet.).

        39
           State v. Morales, 253 S.W .3d 686, 696 (Tex. Crim . App. 2008) ("[U]nless there is a record sufficient
to dem onstrate that counsel's conduct was not the product of a strategic or tactical decision, a reviewing court
should presum e that trial counsel's perform ance was constitutionally adequate 'unless the challenged conduct
was so outrageous that no com petent attorney would have engaged in it.'").

        40
             Thompson, 9 S.W .3d at 813; Jaynes, 216 S.W .3d at 851.

        41
            Bone v. State, 77 S.W .3d 828, 835 (Tex. Crim. App. 2002); Thompson, 9 S.W .3d at 814 (setting
out that "in the vast m ajority of cases, the undeveloped record on direct appeal will be insufficient for an
appellant to satisfy the dual prongs of Strickland"); see Jackson v. State, 877 S.W .2d 768, 771-72 (Tex. Crim .
App. 1994) (en banc) (stating that "we m ust presum e that counsel is better positioned than the appellate court
to judge the pragm atism of the particular case, and that he m ade all significant decisions in the exercise of
reasonable professional judgm ent" and that "[d]ue to the lack of evidence in the record concerning trial
counsel's reasons" for the alleged ineffectiveness, the court was "unable to conclude that appellant's trial
counsel's perform ance was deficient") (internal quotations om itted).

                                                      12
carrier," without citation to authority, he claims that the "word is emotionally charged and

often connotes [that] a 'pistolero' is a 'hitman' or assassin." The State counters that trial

counsel may have been attempting to "sway the jury into believing that [Vega] had not

intended to kill Cantu, and did not anticipate the murder."

        The record in this case is silent regarding trial counsel's reason for describing the

men as "pistoleros," and we cannot speculate as to trial counsel's motives. Moreover,

there was evidence presented that Vega stated that the Mexican men were "professionals"

and when asked who killed Cantu, Vega reiterated that the Mexican men were

professionals and "that that's what they did for a living." The jury also heard evidence that

the Mexican men had guns. Therefore, because there was other evidence that could have

implied that the Mexican men were "hitmen" or assassins, Vega has not met his burden

of showing that there is a reasonable probability that, but for counsel's alleged error, the

result would have been different.42

        Next, Vega argues that trial counsel "continued to bolster the State's case" during

cross-examination of Oscar Treviño, an investigator.43 Specifically, Vega complains that

trial counsel asked questions implying that Liñan was an accessory to the crime and that

Liñan's actions, as recited by his trial counsel, "paralleled" his own conduct in this case.

        Liñan gave two separate statements to police. At trial, Liñan denied that in her

second statement she told police that she allowed Vega to hide guns in her bedroom.44



        42
             Thompson, 9 S.W .3d at 812; see Strickland, 466 U.S. at 694.

        43
           W e note that the jury was instructed that any testim ony by Officer Treviño concerning Liñan's
statem ent to police was adm itted for the purpose of im peaching Liñan and that if the jury found that the
testim ony did im peach Liñan, it could not consider the im peachm ent testim ony as evidence of Vega's guilt.

        44
             Liñan recanted her second statem ent to police.

                                                      13
        We do not agree that defense counsel stated or implied that Liñan could be arrested

for her alleged part in assisting in hiding the guns. Defense counsel clearly stated that it

was Officer Treviño's theory that Liñan assisted with hiding the guns and then asked

whether Officer Treviño charged Liñan with a crime. Based on our review of the totality of

defense counsel's cross-examination of Officer Treviño, it appears that defense counsel

attempted: (1) to discredit Officer Treviño's testimony by implying that Officer Treviño did

not believe Liñan's second statement because he never charged her with an offense, even

though she allegedly told him that she allowed Vega to hide the guns in her bedroom; and

(2) to show that Liñan's second statement to police incriminating Vega was false. Because

a proper trial strategy may consist of cross-examination that attempts to discredit a witness

by pointing out inconsistencies,45 we cannot conclude that defense counsel's cross-

examination of Officer Treviño fell below an objective standard of reasonableness.46

Finally, the record is silent concerning trial counsel's motives for asking the complained-of

questions, and this is not one of those rare cases in which the record shows that the

questions could not have been part of any plausible strategy. We conclude that appellant

has not made the required showing that trial counsel was deficient in his cross-examination

of Officer Treviño.47

        Vega next complains that defense counsel was deficient because he failed to object

to the absence of an application paragraph applying the "conspiracy theory of party liability



        45
            See Josey v. State, 97 S.W .3d 687, 696 (Tex. App–Texarkana 2003, no pet.); see also Ex parte
McFarland, 163 S.W .3d 743, 756 (Tex. Crim . App. 2005) (en banc) (providing that "cross-exam ination is an
art, not a science, and it cannot be adequately judged in hindsight").

        46
             Thompson, 9 S.W .3d at 812; see Strickland, 466 U.S. at 687.

        47
             See Thompson, 9 S.W .3d at 813.

                                                     14
codified in Texas [Penal] Code [section] 7.02(b)" in the capital murder count. Vega argues

that the omission of the application paragraph "focused the jury entirely upon 7.02(a)(2)['s]

manner of party liability without the opportunity for the jury to focus on 7.02(b)['s] theory of

party liability." The record is silent regarding defense counsel's motives for not objecting

to the jury charge on that basis. However, it may have been defense counsel's trial

strategy to focus the jury only on section 7.02(a)(2) and not section 7.02(b).48 Therefore,

Vega has not overcome the strong presumption that counsel's conduct fell within the wide

range of reasonable professional assistance and that his actions could be considered

sound trial strategy.49 Furthermore, Vega has not shown that but for counsel's failure to

object to the jury charge, the result would have been different.50

        Finally, Vega argues that trial counsel was ineffective by not filing "a pretrial motions

[sic] objecting on double jeopardy grounds or object[ing] to the jury charge authorizing

conviction for both" the aggravated robbery and the capital murder charges. Again, the

record is silent on trial counsel's reasons for not objecting on the basis of double jeopardy.

Trial counsel may have decided not to object for strategic reasons.51 We conclude that

appellant failed to rebut the presumption that counsel acted reasonably.52 We overrule

Vega's third issue.


        48
          This Court has previously determ ined the evidence was factually insufficient to support appellant's
conviction under section 7.02(a)(2) and factually sufficient under section 7.02(b).

        49
             See Strickland, 466 U.S. at 689; Jaynes, 216 S.W .3d at 851.

        50
             See Thompson, 9 S.W .3d at 812; see also Strickland, 466 U.S. at 694.

        51
          T he State argues that trial counsel's "best defensive theory was trying to convince the jury that
[Vega] was not crim inally liable for the capital m urder" and that it was "to [Vega's] advantage to have the jury
charged on both offenses, in the hope that the jury would find [Vega] guilty only on the aggravated robbery
charge, and acquit him of the capital m urder charge that carried an autom atic life sentence."

        52
             See Thompson, 9 S.W .3d at 814.

                                                       15
                                             V. CONCLUSION

      Because Vega's convictions for both capital murder and aggravated robbery violated

his constitutional guarantee against double jeopardy, we reform the judgment to delete the

conviction for the offense carrying the less severe punishment, which in this case is the

conviction for aggravated robbery.53 We affirm the trial court's judgment as reformed.




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

Delivered and filed the
29th day of July, 2010




      53
           See Saldana, 287 S.W .3d at 58.

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