Gabriel Flores v. State ( 2006 )

                                    NUMBER 13-04-324-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

GABRIEL FLORES,                                                                          Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

                    On appeal from the 370th District Court

                                        of Hidalgo County, Texas.

                                M E M O R A N D U M   O P I N I O N

     Before Chief Justice Valdez and Justices Rodriguez and Garza

      Opinion by Chief Justice Valdez  

Appellant, Gabriel Flores, was charged in a 26 count indictment alleging the following offenses: aggravated sexual assault of a child (counts 1-10), indecency with a child by contact (counts 11-18), and indecency with a child by exposure (counts 19-26).  Appellant pled guilty to all 26 counts.  A jury sentenced appellant to 99 years= confinement in the Texas Department of Criminal Justice.  On appeal, appellant argues that he was denied effective assistance of counsel as guaranteed by the Texas and United States Constitutions.  We affirm. 

I. BACKGROUND 

Appellant sexually abused his step-daughter while she was between the ages of 11 and 13. In a voluntary statement, appellant admitted to fondling his step-daughter=s breasts and vagina, having sexual intercourse with her, and performing oral sex.  He also admitted to giving his step-daughter several sex toys after, as appellant alleges, she decided to end their Arelationship.@

II. INEFFECTIVE ASSISTANCE OF COUNSEL

         By his sole issue, appellant contends he was denied effective assistance of counsel as guaranteed by the Texas and United States Constitutions.  Specifically, he complains that counsel demonstrated his ineffectiveness when he (1) referred to appellant as Athis monster@; (2) failed to investigate the facts and prepare adequately for trial; (3) failed to use a peremptory challenge for juror no. 6, a long-time educator who became foreperson; and (4) failed to object to the State=s exhibits, which included a vibrator and dildo, on the grounds that their effect was more prejudicial than probative and which inflamed the jury.

A. Standard of Review

We apply a two‑prong test to determine whether representation was so inadequate that it violated the constitutional right to counsel.  Munoz v. State, 24 S.W.3d 427, 433 (Tex. App.BCorpus Christi 2000, no pet.) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 54‑55 (Tex. Crim. App. 1986)). First, trial counsel's performance must fall below an objective standard of reasonableness.  Id.  (citing Strickland, 466 U.S. at 687‑88).  Second, appellant must prove, by a reasonable probability, that counsel's deficient performance prejudiced the defense; that, but for counsel's errors, the result of the proceeding would have been different.  See id. (citing Strickland, 466 U.S. at 694).  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Id. at 433‑34 (citing Strickland, 466 U.S. at 693). Appellant must overcome a strong presumption that counsel's performance fell within the wide range of reasonable professional assistance.  Id. at 434 (citing Thompson v. State, 9 S.W.3d 808, 812‑14 (Tex. Crim. App. 1999); Tijerina v. State, 921 S.W.2d 287, 289 (Tex. App.BCorpus Christi 1996, no pet.)).  Without evidence of the strategy and methods involved concerning counsel=s actions at trial, we will presume sound trial strategy.  See Thompson, 9 S.W.3d at 814.^[1] 

B. Analysis

We have reviewed the record in its entirety, and we conclude that appellant=s claim of ineffective assistance of counsel is unwarranted. 

The record does not contain any evidence of the strategy and methods involved concerning counsel=s actions at trial.  Thus, we must assume that trial counsel=s actions, including those actions complained of by appellant, fell within the wide range of reasonable professional assistance and sound trial strategy.  Id.  Furthermore, given appellant=s voluntary statement detailing his long-term sexual relationship with his step-daughter and his admission to providing her with sex toys, we conclude that appellant has not shown that there is a reasonable probability that, but for counsel=s deficient performance, if any, the result of the proceeding would have been different.  See Strickland, 466 U.S. at 687; see also Morrow v. State, 139 S.W.3d 736, 745 (Tex. App.BTexarkana 2004, no pet.).     

III. CONCLUSION         

We affirm the judgment of the trial court.                           

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 12th day of January, 2006.                                   

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^[1] A substantial risk of failure accompanies a claim of ineffective assistance of counsel on direct appeal because the record is generally underdeveloped and cannot adequately reflect the failings of trial counsel.  McCullough v. State, 116 S.W.3d 86, 92 (Tex. App.BHouston [14th Dist.] 2001, pet. ref=d). Therefore, it is critical that the defendant make the necessary record in the trial court to rebut the Strickland presumption that counsel=s conduct was strategic.  Id. This kind of record is best developed in a hearing on a motion for new trial, or by application for a writ of habeas corpus.  Id.; see Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (per curiam).