Cano, Fernando Jose v. State

• Court: Court of Appeals of Texas
• Decided: October 19, 2004
• Docket: 14-03-00896-CR
• Status: Published

Opinion

Affirmed and Opinion filed October 19, 2004

Affirmed and Opinion filed October 19, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00896-CR

FERNANDO JOSE CANO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 41,290

O P I N I O N

A jury convicted appellant, Fernando Jose Cano, of murder and sentenced him to 99 years= incarceration in the Texas Department of Criminal Justice, Institutional Division.  In his sole issue on appeal, appellant contends his trial counsel=s performance was ineffective for failing to (1) object to the prosecutor=s comment regarding his post-arrest silence; (2) file pretrial motions; (3) object to allegedly inadmissible character evidence; (4) object to allegedly inadmissible extraneous offenses; (5) object to the admission of scientific evidence allegedly without proper predicate; and (6) introduce evidence that allegedly would have impeached the State=s witnesses. 

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel.  See U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 1977).  The right necessarily includes the right to reasonably effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 686 (1984).  The United States Supreme Court has established a two‑prong test to determine whether counsel is ineffective.  Id.  Appellant must first demonstrate his counsel=s performance was deficient and not reasonably effective.  Id. at 688B92.  Thereafter, appellant must demonstrate the deficient performance prejudiced his defense.  Id. at 693.  Essentially, appellant must show that his counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and there is a reasonable probability that, but for his counsel=s unprofessional errors, the result of the proceeding would have been different.  Id.; Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997).

Judicial scrutiny of counsel=s performance must be highly deferential and we are to indulge the strong presumption that counsel was effective.  Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  We assume counsel=s actions and decisions were reasonably professional and that they were motivated by sound trial strategy.  Id.  Moreover, it is appellant=s burden to rebut this presumption, by a preponderance of the evidence, via evidence illustrating why trial counsel did what he did.  Id.  Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness.  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 counsel=s performance was deficient.  Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); Jackson, 877 S.W.2d at 771.

If appellant proves his counsel=s representation fell below an objective standard of reasonableness, he must still affirmatively prove prejudice as a result of those acts or omissions.  Strickland, 466 U.S. at 693; McFarland, 928 S.W.2d at 500.  Counsel=s errors, even if professionally unreasonable, do not warrant setting the conviction aside if the errors had no effect on the judgment.  Strickland, 466 U.S. at 691.  Appellant must prove that counsel=s errors, judged by the totality of the representation, denied him a fair trial.  See McFarland, 928 S.W.2d at 500.  If appellant fails to make the required showing of either deficient performance or prejudice, his claim fails.  See id. 

Here, appellant did not file a motion for new trial and the record contains no evidence of the reasoning behind his counsel=s actions (or lack thereof).  An appellate court is not required to speculate on the reasons behind trial counsel=s actions when confronted with a silent record.  Jackson, 877 S.W.2d at 771; see also Thomspon, 9 S.W.3d at 814 (holding that when the record provides no explanation as to the motivation behind trial counsel=s actions, an appellate court should be hesitant to declare ineffective assistance of counsel).  Appellant fails to provide this court with any evidence to affirmatively demonstrate the ineffectiveness of his trial counsel.  Thus, appellant has not satisfied his burden on appeal to rebut the presumption that counsel=s actions were reasonably professional and motivated by sound trial strategy.

Moreover, even if the record rebutted the presumption of sound trial strategy, appellant has not demonstrated that trial counsel=s performance prejudiced his defense.  He has not, therefore, met the second prong of the test.  Because appellant produced no evidence concerning trial counsel=s reasons for choosing the course he did, nor did he demonstrate prejudice to his defense, his sole issue on appeal is overruled.  See McFarland, 928 S.W.2d at 500. 

Accordingly, the judgment of the trial court is affirmed.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Opinion filed October 19, 2004.

Panel consists of Justices Anderson, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).