Opinion filed December 13, 2013




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-11-00351-CR
                                  __________

           ARTHUR JEFFREY MARTINEZ, III, Appellant
                           V.
               THE STATE OF TEXAS, Appellee

                    On Appeal from the 385th District Court
                           Midland County, Texas
                       Trial Court Cause No. CR38830



                     MEMORANDUM OPINION
      The jury convicted Arthur Jeffrey Martinez, III of aggravated assault with a
deadly weapon and assessed his punishment at confinement for fifteen years. In
two issues, Appellant contends that the trial court erred when it failed to sua sponte
submit to the jury an instruction on a lesser included offense and that trial counsel
was ineffective because he failed to request such an instruction. We affirm.
      As Michael Melendez drove around waiting on his friend to get home, the
driver of a black Dodge Charger pulled alongside Melendez’s pickup while
Melendez was stopped at a stop sign. Appellant and his cousins Gonzalo Bravo
and Marino Bravo were in the Charger. Although they did not know each other,
Appellant and Melendez had an angry exchange of words.               Appellant began
shooting at Melendez, and Melendez “slam[med] on the gas” and drove off. The
Charger followed Melendez for “a block or two,” and Appellant continued to shoot
at Melendez’s pickup. Ultimately, Appellant and the others who were in the
Charger stopped chasing Melendez and returned to a nearby house where
Appellant had earlier parked his vehicle. Appellant told the others that he was
leaving town, and he left.
      Meanwhile, Melendez called the police. When the officers arrived, they
found seven bullet holes in the tailgate, left back quarter panel, rearview mirror,
back window, and front windshield of Melendez’s pickup.
      Officers talked with the Bravo brothers, and they identified Appellant as the
shooter. Appellant was later arrested in Austin by United States Marshals.
      In his first issue, Appellant argues that the trial court erred when it failed “to
include the lesser included offense of deadly conduct in the jury charge.” The
State argues that the trial court is not required to instruct the jury on a lesser
included offense when it is not requested because it could be the trial strategy of
the accused not to request the instruction and that, because “Appellant in this case
relied on the defense of alibi,” arguing “for a lesser-included offense would have
distracted from his simple defense: I was not there.”
      Appellant did not object to the charge. Generally, the failure to either object
to the omission of or request a charge on a lesser included offense waives any error
on appeal.   Kinnamon v. State, 791 S.W.2d 84, 96 (Tex. Crim. App. 1990),
overruled on other grounds by Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim.
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App. 1994). Although the trial court has an absolute sua sponte duty to prepare a
jury charge that accurately sets out the law applicable to the specific offense
charged, it does not have a similar sua sponte duty to instruct the jury on all
potential defensive issues, lesser included offenses, or evidentiary issues.
Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007). A lesser included
offense is not “applicable to the case” absent a request by the defense that the trial
court charge the jury on the lesser included offense. Tolbert v. State, 306 S.W.3d
776, 781 (Tex. Crim. App. 2010).        Such issues frequently depend upon trial
strategy and tactics and are generally left to the defendant and his trial counsel.
Delgado, 235 S.W.3d at 249. Because the trial court did not err when it did not sua
sponte charge the jury on the lesser included offense of deadly conduct, we do not
reach any of the harm issues discussed in the briefing. Appellant’s first issue on
appeal is overruled.
      In his second issue, Appellant argues that he was deprived of his right to
effective assistance of counsel when his trial counsel did not request that the trial
court charge the jury on the lesser included offense of deadly conduct.
      To prevail on a claim of ineffective assistance of counsel, an appellant must
establish that his lawyer’s performance fell below an objective standard of
reasonableness and that there is a “reasonable probability” the result of the
proceeding would have been different but for counsel’s deficient performance.
Strickland v. Washington, 466 U.S. 668, 693–94 (1984); Mallett v. State, 65
S.W.3d 59, 62–63 (Tex. Crim. App. 2001).            A reasonable probability is a
probability sufficient to undermine confidence in the outcome of the trial.
Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). The purpose of
this two-pronged test is to judge whether counsel’s conduct so compromised the
proper functioning of the adversarial process that the trial cannot be said to have


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produced a reliable result. Thompson v. State, 9 S.W.3d 808, 812–13 (Tex. Crim.
App. 1999).
       The review of defense counsel’s representation is highly deferential and
presumes that counsel’s actions fell within a wide range of reasonable professional
assistance. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Appellant
must overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768
(Tex. Crim. App. 1994); Hayden v. State, 155 S.W.3d 640, 648 (Tex. App.—
Eastland 2005, pet. ref’d). When the record is silent on the motivations underlying
counsel’s tactical decisions, an appellant usually cannot overcome the strong
presumption that counsel’s conduct was reasonable. Thompson, 9 S.W.3d at 813.
In order to defeat Strickland’s presumption of reasonable professional assistance,
“any allegation of ineffectiveness must be firmly founded in the record, and the
record must affirmatively demonstrate the alleged ineffectiveness.” Id. at 814
(citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). When
the record contains no evidence of the reasoning behind trial counsel’s actions, we
cannot conclude that counsel’s performance was deficient. Jackson, 877 S.W.2d at
771.
       Assuming without deciding that Appellant was entitled to an instruction on a
lesser included offense, we conclude that the record does not support Appellant’s
contention that trial counsel’s performance fell below an objective standard of
reasonableness.    “Ineffective assistance of counsel claims are not built on
retrospective speculation”; they must be firmly founded in the record, which “must
itself affirmatively demonstrate the alleged ineffectiveness.” Bone v. State, 77
S.W.3d 828. 835 (Tex. Crim. App. 2002). In most cases, the undeveloped record
on direct appeal will be insufficient to satisfy both prongs of Strickland because the
reasonableness of counsel’s choices often involves facts not appearing in the
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appellate record. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App.
2003). This case is no different. The record is undeveloped and does not shed any
light on why trial counsel did not request a jury charge on the offense of deadly
conduct as a lesser included offense of aggravated assault. However, the failure to
request an instruction on a lesser included offense may be the result of reasonable
trial strategy. See, e.g., Ex parte White, 160 S.W.3d 46, 55 (Tex. Crim. App. 2004)
(holding counsel was not ineffective for adopting an all or nothing trial strategy in
which counsel failed to request jury instructions on the lesser included offenses of
manslaughter and negligent homicide in a murder case). Because the record in this
case is undeveloped on this issue, we cannot hold that counsel was ineffective for
failing to request a jury instruction on the lesser included offense of deadly
conduct. Appellant’s second issue on appeal is overruled.
      We affirm the judgment of the trial court.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE


December 13, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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