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                                 MEMORANDUM OPINION

                                         No. 04-07-00517-CR

                                   Mark Allen Olague JOHNSON,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2006-CR-5192
                              Honorable Sid L. Harle, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: February 4, 2009

AFFIRMED

           Mark Allen Olague Johnson was convicted of murder and sentenced to forty years

imprisonment. On appeal, he claims that he was denied effective assistance of counsel. We affirm.

           On March 30, 2006, Johnson and the decedent, Nick Villarreal, walked down into a drainage

ditch to settle their differences over Monica Olague, Johnson’s wife and Villarreal’s lover. Olague,

a prostitute and heroin addict, waited on top of the bridge. After the fight, Villarreal died from stab
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wounds. At trial, the defense’s theories of the case were that Johnson killed Villarreal in self defense

and that he was “set up” by his wife, Olague, and her lover, Villarreal.

        Johnson claims that his trial counsel was ineffective for failing to move to suppress two

statements he made to police. We measure a claim of ineffective assistance of counsel against the

two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687

(1984). Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986) (applying Strickland test).

The appellant must first show that his attorney’s performance was deficient, i.e., that his assistance

fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.

Crim. App. 1999). Second, assuming the appellant has demonstrated deficient assistance, it is

necessary to affirmatively prove prejudice. Id. An appellant bears the burden of proving by a

preponderance of the evidence that counsel was ineffective, and we look to the totality of the

representation and the particular circumstances of each in evaluating the effectiveness of counsel.

Id. When reviewing a claim of ineffective assistance of counsel, we must be highly deferential to

trial counsel and avoid “deleterious effects of hindsight.” Id. There is a strong presumption that

counsel’s conduct fell within the wide range of reasonable professional assistance. Id.

        Further, the assessment of whether a defendant received effective assistance of counsel must

be made according to the facts of each case. Id. at 813. Any allegation of ineffectiveness must be

firmly founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness. Id. Here, the record reflects that although he filed a motion to suppress, trial counsel

decided not to urge the motion because he believed Johnson’s statements were, in part, helpful to

the defense. Given that the defense’s theories were that Johnson killed Villarreal in self defense and




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that he was “set up” by his wife and Villarreal, counsel’s decision appears to be reasonable trial

strategy.

        Further, we note that the record does not reflect which parts of the statements Johnson made

to the police trial counsel believed to be helpful. Thus, we cannot know the full reasons behind trial

counsel’s decision to waive the motion to suppress and must presume that counsel’s conduct fell

within the wide range of reasonable professional assistance. See id.; see also Bone v. State, 77

S.W.3d 828, 833 (Tex. Crim. App. 2002) (“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 decisionmaking as to overcome the presumption that counsel’s conduct was reasonable

and professional.”).

        We affirm the judgment of the trial court.



                                                        Karen Angelini, Justice



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