                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-099-CR
                               NO. 2-08-100-CR




LUIS CHAVARRI                                                         APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Luis Chavarri appeals his convictions and sentences for

aggravated sexual assault of a child under age fourteen and possession of child

pornography.      In a single point, he argues that his trial counsel provided

constitutionally ineffective assistance of counsel. We will affirm.




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          … See Tex. R. App. P. 47.4.
      Chavarri entered open pleas of guilty to the offenses of aggravated sexual

assault of a child under fourteen years of age and possession of child

pornography. He testified at the punishment phase of the trial and detailed his

criminal conduct. Chavarri’s counsel called three other witnesses who gave

testimony. The trial court found Chavarri guilty of both offenses and sentenced

him to thirty-five years’ confinement for the aggravated sexual assault offense

and eight years’ confinement for the possession of child pornography offense.

      Chavarri argues in his sole point that because trial counsel’s “entire goal

was to achieve as lenient a sentence as possible,” he was ineffective for failing

to obtain a mitigation specialist to assist in the investigation and handling of the

case. Chavarri contends that the trial court should have been presented with

evidence of his life story from sources other than just the Pre-Sentence

Investigation Report and his sister’s testimony and that trial counsel “put on a

halfhearted mitigation case.”

      To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different.   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.

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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); Hernandez v.

State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).

      In evaluating the effectiveness of counsel under the first prong, we look

to the totality of the representation and the particular circumstances of each

case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance

was reasonable under all the circumstances and prevailing professional norms

at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S.

Ct. at 2065. 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.      Salinas, 163 S.W.3d at 740;

Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on

direct appeal to fairly evaluate the merits of an ineffective assistance claim.

Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on

direct appeal is undeveloped and cannot adequately reflect the motives behind

trial counsel’s actions.”   Salinas, 163 S.W.3d at 740 (quoting Mallett, 65

S.W.3d at 63). Thus, there is a substantial risk of failure when a claim of

ineffective assistance of counsel is brought on direct appeal. Thompson, 9

S.W.3d at 813.     To overcome the presumption of reasonable professional

assistance, “any allegation of ineffectiveness must be firmly founded in the

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record,   and   the   record   must    affirmatively   demonstrate    the   alleged

ineffectiveness.” Salinas, 163 S.W.3d at 740 (quoting Thompson, 9 S.W.3d

at 813). It is not appropriate for an appellate court to simply infer ineffective

assistance based upon unclear portions of the record.         Mata v. State, 226

S.W.3d 425, 432 (Tex. Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial with

a reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other

words, appellant must show there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.   Id. at 694, 104 S. Ct. at 2068.       A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Id. The ultimate

focus of our inquiry must be on the fundamental fairness of the proceeding in

which the result is being challenged. Id. at 697, 104 S. Ct. at 2070.

      Here, Chavarri did not develop the record to support his ineffective

assistance claim by filing a motion for new trial. As such, there is no evidence

in the record demonstrating why trial counsel did not hire a mitigation specialist,

there is no evidence in the record illuminating the extent of trial counsel’s

investigation into Chavarri’s background and life circumstances for possible

mitigating evidence, nor is there any evidence in the record that mitigating

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evidence existed to be discovered by a mitigation specialist. The silent record

is thus not sufficiently developed to allow us to do more than speculate as to

why trial counsel did not hire a mitigation specialist. 2 See Mata, 226 S.W.3d

at 432. Although there are rare cases in which a record is sufficient for an

appellate court to make a decision on the merits of an ineffective assistance of

counsel claim, this is not one of those cases; trial counsel’s alleged

ineffectiveness is not so apparent from the record that “the inherent need for

reversal is obvious.”   See Remsburg v. State, 219 S.W.3d 541, 546 (Tex.

App.—Texarkana 2007, pet. ref’d).

      Because Chavarri’s allegation of ineffectiveness is not firmly founded in

the record, he has not overcome the strong presumption that trial counsel’s

conduct fell within the wide range of reasonable representation. See Salinas,

163 S.W.3d at 740. Chavarri’s ineffectiveness claim thus fails under the first

Strickland prong. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065;

Grijalva v. State, No. 02-08-00018-CR, 2008 WL 4602252, at *1 (Tex.

App.—Fort Worth Oct. 16, 2008, no pet.) (mem. op., not designated for



      2
       … Chavarri’s argument relies heavily on Wiggins v. Smith, 539 U.S. 510,
123 S. Ct. 2527 (2003). Wiggins is procedurally distinguishable from this case
because the petitioner in that case sought post-conviction relief in which he
presented testimony supporting his ineffective assistance claim. Id. at 516–17,
123 S. Ct. at 2532–33. Here, Chavarri raises his ineffective assistance claim
on direct appeal with a silent record.

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publication) (addressing identical issue and reaching same conclusion); see also

Teixeira v. State, 89 S.W.3d. 190, 193–94 (Tex. App.—Texarkana 2002, pet.

ref’d) (overruling argument that counsel was ineffective for failing to request

that a sexual offense expert be appointed to assist at trial or in mitigation of

punishment because there was no showing in the record that an expert would

have testified in a manner that would have benefitted appellant). We overrule

Chavarri’s sole point and affirm the trial court’s judgments.


                                                 PER CURIAM

PANEL: MEIER, DAUPHINOT, and GARDNER, JJ.

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

DELIVERED: April 2, 2009




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