No. 13-05-567-CR
Memorandum Opinion Delivered and Filed May 18, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 105th District Court of Kleberg County, Texas.
Before Justices HINOJOSA, YAÑEZ, and GARZA.
Memorandum Opinion by Justice GARZA.
Appellant, Francisco Perez, was convicted by a jury of attempted capital murder, sentenced to 60 years' imprisonment, and assessed a $10,000 fine. See Tex. Pen. Code Ann. § 15.01 (a) (Vernon 2003), 19.03(a)(7)(A) (Vernon Supp. 2005). In a single issue, appellant argues that he was denied effective assistance of counsel. For the reasons that follow, we affirm the conviction.
I. STANDARD OF REVIEW
This Court uses the two-pronged Strickland test to determine whether representation was so inadequate that it violated a defendant's Sixth Amendment right to counsel. See Strickland v. Washington, 466 U.S. 668, 684 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986); Alfano v. State, 780 S.W.2d 494, 495 (Tex.App.-Corpus Christi 1989, no pet.). To establish ineffective assistance of counsel, appellant must show (1) his attorney's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for his attorney's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. Whether this test has been met is to be judged on appeal by the totality of the representation, not by isolated acts or omissions. Rodriguez v. State, 899 S.W.2d 658, 665 (Tex.Crim.App. 1995). The burden is on appellant to prove ineffective assistance of counsel by a preponderance of the evidence. Munoz v. State, 24 S.W.3d 427, 434 (Tex.App.-Corpus Christi 2000, no pet.). Our review of counsel's representation is highly deferential; appellant must overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689; Munoz, 24 S.W.3d at 434. "In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions." Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). An allegation of ineffective assistance of counsel will only be sustained if it is firmly founded and the record affirmatively demonstrates counsel's alleged ineffectiveness. Guzman v. State, 923 S.W.2d 792, 797 (Tex.App.-Corpus Christi 1996, no pet.). II. INEFFECTIVE ASSISTANCE OF COUNSEL
In his sole issue, appellant argues he was provided ineffective assistance of counsel because his trial counsel (1) failed to file a verified motion to transfer venue, (2) failed to secure a ruling on the motion to transfer, (3) failed to introduce appellant's mental health records at the hearing on the motion to suppress and at the punishment phase of trial, and (4) failed to hire a psychiatrist to assist him during the hearing on the motion to suppress appellant's confession and during the punishment phase of trial. Even assuming, arguendo, that trial counsel's representation fell below an objective standard of reasonableness, appellant has not alleged or developed any argument as to how the outcome of his trial would have been different had his lawyer filed an adequate motion to transfer venue, introduced his mental health records, and hired an expert witness to assist in his defense. Appellant states only that "trial counsel's representation, taken in its totality, fell far below the standard of reasonable, legal representation," and "the legal work that was not performed for the appellant, causes any reasonable person to have serious doubts regarding the fairness of the appellant's trial" and "regarding the fairness of punishment." Appellant has not shown how trial counsel's failure, if any, to perform the complained-of legal work undermines confidence in the outcome of his trial. See Tex.R.App.P. 38.1(h), 44.2(a); see also Strickland, 466 U.S. at 693. Appellant's issue is overruled. We affirm the trial court's judgment.