Brian Neil Vallejo v. State ( 2007 )

Opinion issued July 6, 2007

Opinion issued July 6, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00596-CR

BRIAN NEIL VALLEJO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 1048363

MEMORANDUM OPINION

Appellant Brian Neil Vallejo pleaded not guilty to the first-degree felony offense of aggravated assault.  See Tex. Pen. Code Ann. § 22.02 (Vernon Supp. 2006).  A jury found Vallejo guilty and assessed punishment at thirty-five years’ confinement.  In three issues, Vallejo contends (1) the identification evidence is legally and factually insufficient to support his conviction for aggravated assault, (2) the trial court erred in denying his request for a jury charge instruction on the lesser-included offense of assault, and (3) his trial counsel was ineffective in failing to contest the admission of a gun, and in failing to contest the admission of a witness’s in-court identification testimony.  We conclude that (1) the identification evidence is legally and factually sufficient to support Vallejo’s conviction, (2) the trial court did not err in denying Vallejo’s request for an instruction on the lesser-included offense of assault, and (3) Vallejo has failed to demonstrate that he received ineffective assistance of counsel at trial.  We therefore affirm.

Background

          On the night of November 27, 2005, Phillip Pararuan went to a bar in downtown Houston with some friends.  Pararuan testified that he drank two or three beers during the course of the night but he was not drunk.  Pararuan exited the bar when it closed at 2:00 a.m., and he waited with his friend Tony Keo on the sidewalk outside.  While Pararuan and Keo were waiting, a man named Darrick Coates bumped into Pararuan and asked if he had a problem.  Pararuan responded, “[N]o, I don’t have a problem.  Don’t worry about it.  It’s cool.”  Pararuan and Coates exchanged some additional words and Coates walked away after a few minutes. 

Pararuan and Keo then started walking toward the parking lot behind the bar. Pararuan and Keo saw Coates again when they arrived at the parking lot.  Pararuan then heard someone yell something about a gun.  When Pararuan turned his head, he saw Vallejo walking quickly toward him with a gun in his hand.  Vallejo fired one shot in the air and then struck Pararuan on the back of the head with the gun as he was turning to run away. The gun fired a second time when Vallejo struck Pararuan on the head.  When Pararuan regained consciousness, Keo was pulling him away from the scene.  Police arrived shortly thereafter, and Keo told the officers that Vallejo and Coates were driving a green Cadillac. As a result of the incident, Pararuan sustained a cut on the back of his head, a broken nose, temporary paralysis in his right leg lasting three hours, and a headache lasting one week. 

Several police officers working near the parking lot on the night of the incident heard the gunshots and immediately ran to the scene.  A large crowd gathered around the parking lot pointed the officers to a green Cadillac.  When Officer T. Nguyen first saw the Cadillac, Vallejo and Coates were standing outside of the vehicle and they had the hood open.  Nguyen ordered Vallejo and Coates to freeze and put their hands up, but they did not comply.  Instead, Vallejo and Coates closed the hood, got inside the Cadillac, and attempted to exit the parking lot. 

Officer C. Sandoval arrived at the scene while Vallejo and Coates were attempting to exit the parking lot.  Sandoval and Nguyen stopped the Cadillac when it began backing up after attempting to turn the wrong way down a one-way street.  The officers then observed Vallejo open the driver’s side door and throw a gun under the Cadillac.  Sandoval and Nguyen pulled Vallejo and Coates out of the Cadillac and placed them under arrest.

Officer R. Schindler arrived at the scene shortly thereafter and interviewed Keo. Schindler testified that he accompanied Keo to the vehicle in which the police held Vallejo.  Keo immediately identified Vallejo as the man who struck Pararuan with the gun.

          Officer Brenham recovered the gun that Vallejo threw under the Cadillac.  Brenham testified that the gun had thirteen live rounds in the magazine when he found it, but can hold nineteen rounds if fully loaded.  The gun also had an empty shell casing inside the chamber, which indicated that the gun had malfunctioned the last time it was fired.  Brenham testified that the blow to Pararuan’s head could have caused the malfunction. 

Legal and Factual Sufficiency

In his first issue, Vallejo contends the identification evidence is legally and factually insufficient to support his conviction. 

When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005).  The standard is the same for both direct and circumstantial evidence cases.  King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).  We do not weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact.  See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991).  Instead, our duty is to determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict.  See Adelman, 828 S.W.2d at 422.  In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843.

When conducting a factual sufficiency review, we view all of the evidence in a neutral light.  Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999).  We will set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  Under the first prong of Johnson, we cannot conclude that a verdict is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury.  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict.  Id.  Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id.  In conducting a factual sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict.  See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). 

We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor.  Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997).  As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented.  Id. at 407 n.5.

A person commits assault if the person intentionally, knowingly, or recklessly causes bodily injury to another.  Tex. Pen. Code Ann. § 22.01 (Vernon Supp. 2006).  A person commits aggravated assault if the person commits assault as defined in section 22.01 of the Texas Penal Code, and the person uses or exhibits a deadly weapon during the commission of the assault.  Id. § 22.02.

The record in this case reflects that Pararuan first saw Vallejo in the parking lot after the confrontation with Coates in front of the bar.  Pararuan testified that Vallejo was about five to eight feet away and walking toward him with a gun.  Pararuan then turned to run and Vallejo immediately struck him on the back of the head with the gun. Officer Brenham interviewed Pararuan at the hospital after the incident and Pararuan told Brenham that he was not sure that he would be able to identify Vallejo because he blacked out when Vallejo struck him with the gun.  Pararuan, however, confidently identified Vallejo at trial. 

Pararuan testified that he drank two or three beers on the night of the incident but he was not drunk.  Pararuan also testified that his friends told him that he was drunk on the night of the incident, but speculated that they were probably just teasing him because he does not drink very often.  Keo testified that Pararuan was not drunk on the night of the incident. 

Keo saw Vallejo on the sidewalk in front of the bar during Pararuan’s confrontation with Coates, and in the parking lot when Vallejo struck Pararuan with the gun.  When Keo first noticed that Vallejo was walking toward Pararuan in the parking lot, he could not tell that Vallejo was holding a gun because the lighting was not very good.  Keo realized that Vallejo was holding a gun when Vallejo fired the warning shot and walked closer to Pararuan.  Keo testified that he was able to see what Vallejo looked like on the night of the incident, and Vallejo was about eight feet away from him when he fired the warning shot.  Keo saw Vallejo strike Pararuan with the gun, and then run toward the green Cadillac with Coates.  Keo identified Vallejo at the scene and at trial. 

The prosecutor showed Keo a picture of Vallejo before the trial.  The State admitted the picture into evidence and Keo testified that he had no doubt that Vallejo was the man in the picture.  Keo testified that he did not drink any alcohol on the night of the incident. 

          The police officers who arrived at the scene were all directed to the green Cadillac by the large number of people in the parking lot.  Sandoval and Nguyen both saw Vallejo open the driver’s side door of the Cadillac and throw a gun under the vehicle. Brenham recovered the gun from under the Cadillac and Keo identified the gun at trial as the same gun Vallejo used to strike Pararuan.  Sandoval and Nguyen identified Vallejo at trial as the driver of the green Cadillac.

          In his appellate brief, Vallejo points to general inconsistencies in the evidence and suggests that the inconsistencies affect the credibility and sufficiency of the identification evidence.  Specifically, Vallejo asserts that the evidence surrounding the amount of time that elapsed between the two gunshots, and the testimony of the police officers regarding the actions of Vallejo and Coates in the parking lot, are inconsistent. While the evidence presented in this case is not perfectly consistent, most of the evidence that Vallejo identifies as inconsistent is not related to the identification evidence.  “Contradictions or inconsistencies in the testimony between witnesses does not destroy, but only affects the weight to be given, their testimony.”  Johnson v. State, 454 S.W.2d 205, 206–07 (Tex. Crim. App. 1970); accord Weisinger v. State, 775 S.W.2d 424, 429 (Tex. App.—Houston [14th Dist.] 1989, pet. ref’d.).    

Vallejo also asserts that Pararuan misidentified him at trial.  The following exchange occurred at trial:

[Pararuan:] When we came around the corner, everybody was still gathered around like right when you turn and then I saw the guy that I bumped into and a few other people just talking.  And then all of a sudden, I see him coming out of nowhere with a gun.  He pointed the gun, shot once in the air and then right before I could even realize, turned around—

[Prosecutor:] Let my [sic] stop you there and ask you a few more questions about the situation. You said you saw him?

[Pararuan:] Yes.

[Prosecutor:] Could you identify who you—identify who you’re pointing to by an article of clothing?

[Pararuan:] The gray shirt with the black and gray/blue tie.

[Prosecutor:] Your Honor, may the record reflect that he identified the defendant?

This testimony demonstrates that Pararuan identified Vallejo as the person who committed the aggravated assault, not Coates.  Pararuan’s first statement in this excerpt is clarified by the statements following it. Pararuan therefore did not misidentify Vallejo at trial.

          Additionally, while Pararuan’s statement to Brenham at the hospital and the prosecutor’s act of showing Vallejo’s picture to Keo before trial might have affected Pararuan’s and Keo’s credibility, evaluating the credibility of the witnesses is the function of the jury.  See Dewberry, 4 S.W.3d at 740; Cain, 958 S.W.2d at 407 n.5; Adelman, 828 S.W.2d at 421; Matson, 819 S.W.2d at 843.

Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found beyond a reasonable doubt that Vallejo committed the aggravated assault against Pararuan.  See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Drichas, 175 S.W.3d at 798.  Viewing the evidence in a neutral light, we hold that the identification evidence is not so weak that the verdict is clearly wrong and manifestly unjust, nor is the verdict against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 417; Johnson, 23 S.W.3d at 11; Ladd, 3 S.W.3d at 557.  The evidence is therefore legally and factually sufficient to support the jury’s finding that Vallejo committed the aggravated assault against Pararuan.  See, e.g., Brown v. State, 212 S.W.3d 851, 864–65 (Tex. App.—Houston [1st Dist.] 2006, pet. filed) (holding that identification evidence was factually sufficient to support defendant’s aggravated robbery conviction); Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (holding that identification evidence was factually sufficient to support defendant’s aggravated robbery conviction where complainant testified that she got a good look at defendant and positively identified him in photographic lineup); Apolinar v. State, 106 S.W.3d 407, 412–13 (Tex. App.—Houston [1st Dist.] 2003), aff’d, 155 S.W.3d 184, 191 (Tex. Crim. App. 2005) (holding that identification evidence was factually sufficient to support defendant’s aggravated robbery conviction, even though complainant demonstrated memory and vision problems at trial; complainant identified defendant three times at trial, witness testimony was fairly consistent in describing defendant’s appearance, and officers later found knife with blade consistent with defendant’s arm wound); Wimbrey v. State, 106 S.W.3d 190, 191–93 (Tex. App.—Fort Worth 2003, pet. ref’d) (holding that identification evidence was factually sufficient to support defendant’s conviction for aggravated robbery where two witnesses separately identified defendant in photographic lineup two months after robbery, and both identified defendant at trial); Fluellen v. State, 104 S.W.3d 152, 160–61 (Tex. App.—Texarkana 2003, no pet.) (holding that identification evidence was factually sufficient to support defendant’s conviction for delivery of controlled substance where officer identified defendant at trial, and officer identified defendant’s voice on audiotape of transaction).

Lesser-Included Offense

          In his second issue, Vallejo contends the trial court erred in denying his request for a jury charge instruction on the lesser-included offense of assault.  The State responds that the record contains no evidence to support the submission of such an instruction.

“When reviewing charge errors, an appellate court must undertake a two-step review: first, the court must determine whether error actually exists in the charge, and second, the court must determine whether sufficient harm resulted from the error to require reversal.”  Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994).

We use a two-pronged test to determine whether a defendant is entitled to an instruction on a lesser-included offense.  See Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006); Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005).  The first step is to determine whether an offense is a lesser-included offense of the alleged offense.  Hall v. State, No. PD-1594-02, 2007 WL 1343110, at *8 (Tex. Crim. App. May 9, 2007); Salinas, 163 S.W.3d at 741.  This determination is a question of law, and it does not depend on the evidence to be produced at the trial.  Hall, 2007 WL 1343110, at *8.  

An offense is a lesser-included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006).  When the greater offense may be committed in more than one manner, the manner alleged will determine the availability of lesser-included offenses.  Hall, 2007 WL 1343110, at *5.

The second step is to determine if there is some evidence that would permit a rational jury to find that the defendant is guilty of the lesser offense but not guilty of the greater.  Id. at *9; Salinas, 163 S.W.3d at 741; Feldman v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002).  Anything more than a scintilla of evidence may be sufficient to entitle a defendant to a charge on the lesser offense.  Hall, 2007 WL 1343110, at *9.  “[I]t is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted.”  Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003).

A person commits the lesser offense of assault if the person intentionally, knowingly, or recklessly causes bodily injury to another.  Tex. Pen. Code Ann. § 22.01.  A person commits the greater offense of aggravated assault if the person commits assault as defined in section 22.01 of the Texas Penal Code, and the person uses or exhibits a deadly weapon during the commission of the assault.  Id. § 22.02.

Here, Vallejo’s indictment reads as follows:

The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, BRIAN NEIL VALLEJO, hereafter styled the Defendant, heretofore on or about NOVEMBER 27, 2005, did then and there unlawfully, intentionally and knowingly cause bodily injury to Phillip Pararuan by using a deadly weapon, namely, a firearm.

In proving that Vallejo committed aggravated assault, the State established that Vallejo caused bodily injury to Pararuan using a firearm. See id. §§ 22.01, 22.02.  Thus, the only difference between assault and aggravated assault as applied to the facts of this case is the deadly weapon element of aggravated assault.  Id.  Accordingly, because the elements of assault are included within the proof necessary to establish aggravated assault, assault is a lesser-included offense of aggravated assault.  See Tex. Code Crim. Proc. Ann. art. 37.09(1); Hall, 2007 WL 1343110, at *5 (“Assault by committing bodily injury is a lesser-included offense of aggravated assault by inflicting serious bodily injury, but not of aggravated assault by threat with a deadly weapon.”); Irving v. State, 176 S.W.3d 842, 845 (Tex. Crim. App. 2005) (“simple assault may be a lesser-included offense of aggravated assault in some cases”); Salinas, 163 S.W.3d at 741.

Having found that assault is a lesser-included offense of aggravated assault, we next determine if there is some evidence that would have permitted a rational jury to find that Vallejo was only guilty of assault.  Hall, 2007 WL 1343110, at *9; Salinas, 163 S.W.3d at 741; Feldman, 71 S.W.3d at 750.  The record in this case contains no evidence to support the submission of a jury charge instruction on the lesser-included offense of assault. Pararuan and Keo both testified that Vallejo fired a shot in the air, and then struck Pararuan on the back of the head with the gun.  Pararuan and Keo also testified that the gun fired a second time when it struck Pararuan’s head. See Tex. Pen. Code Ann. § 1.07(a)(17)(A) (Vernon Supp. 2006) (“‘Deadly weapon’ means: (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury . . . .”); Tex. Pen. Code Ann. § 46.01(3) (Vernon 2003) (“‘Firearm’ means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use.”); Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005) (“A firearm is a deadly weapon per se.”); Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991) (holding that State need not prove that firearm is really capable of causing death, either in manner of its actual use or in manner of its intended use to prove that it is deadly weapon).  The record contains no evidence negating the deadly weapon element of aggravated robbery, and no evidence suggesting that Vallejo struck Pararuan with anything other than a gun.  See Walker v. State, 95 S.W.3d 516, 519–20 (Tex. App.—Fort Worth 2002, pet. ref’d).  Contrary to the assertions in Vallejo’s appellate brief, neither Pararuan’s testimony that he turned away before Vallejo struck him and thus did not see the object used to carry out the assault, nor the injury Pararuan sustained when his face hit the ground, constitute evidence that Vallejo did not use a firearm.  The trial court did not err in refusing to submit a jury charge instruction on the lesser-included offense of assault because, although the jury could have chosen to disbelieve evidence that Vallejo used a firearm to carry out the assault, no evidence exists that the assault was carried out in any other manner.  Pararuan and Keo both testified that Vallejo used the gun to strike Pararuan, and the record contains no evidence that Vallejo used his fist and not a firearm to strike Pararuan.  See Guzman, 188 S.W.3d at 194–95 (holding that record contained no evidence to support submission of instruction on lesser-included offense); Hampton, 109 S.W.3d at 441–42 (same); Skinner v. State, 956 S.W.2d 532, 543–44 (Tex. Crim. App. 1997) (same); Walker, 95 S.W.3d at 519–20 (same).

Ineffective Assistance of Counsel

          In his third issue, Vallejo contends his trial counsel was ineffective in failing to contest the admission of the gun, and in failing to contest Keo’s in-court identification of Vallejo.  The State responds that Vallejo has failed to rebut the presumption that counsel’s conduct was strategic.

To show ineffective assistance of counsel, a defendant must demonstrate both (1) that his counsel’s performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005).  “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).  A defendant has the burden to establish both of these prongs by a preponderance of the evidence, and a failure to make either showing defeats his ineffectiveness claim.  Salinas, 163 S.W.3d at 740; Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).  We presume that counsel’s conduct falls within the wide range of reasonable professional assistance, and we will find counsel’s performance deficient only if the conduct is so outrageous that no competent attorney would have engaged in it.  Andrews, 159 S.W.3d at 101.  We cannot speculate beyond the record provided, so any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  The Strickland test applies to the punishment phase of a non-capital trial, as well as guilt-innocence.  Hernandez v. State, 988 S.W.2d 770, 770–72 (Tex. Crim. App. 1999).

In most cases, an undeveloped record on direct appeal is insufficient to satisfy the dual prongs of Strickland because the reasonableness of counsel’s decisions often involves facts not appearing in the appellate record.  Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).  It is therefore critical that the defendant obtain the necessary record in the trial court to rebut the Strickland presumption that counsel’s conduct was strategic.  Thompson, 9 S.W.3d at 814; McCullough v. State, 116 S.W.3d 86, 92 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).  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.  See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); McCullough, 116 S.W.3d at 92. Without evidence of the strategy and methods involved concerning counsel’s actions at trial, an appellate court should presume a sound trial strategy.  See Thompson, 9 S.W.3d at 814.  If no reasonable trial strategy could justify trial counsel’s conduct, counsel’s performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects trial counsel’s subjective reasons for acting as he did.  Andrews, 159 S.W.3d at 102.

The record in this case contains no evidence of counsel’s reasons for not contesting the admission of the gun and Keo’s in-court identification of Vallejo.  We also cannot say that no reasonable trial strategy could justify trial counsel’s conduct.  See id.; see also Tong v. State, 25 S.W.3d 707, 713–14 (Tex. Crim. App. 2000) (holding that counsel’s failure to object to victim impact testimony did not constitute ineffective assistance of counsel when record was silent as to counsel’s strategy); Thompson, 9 S.W.3d at 814; (holding that counsel’s failure to object to State’s attempts to elicit hearsay testimony did not constitute ineffective assistance of counsel when record was silent as to counsel’s strategy); Batiste v. State, 217 S.W.3d 74, 83 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding that counsel’s failure to object to State’s insinuation during closing argument that defendant sold drugs to children did not constitute ineffective assistance of counsel when record was silent as to counsel’s strategy).  Vallejo has therefore failed to rebut the Strickland presumption that counsel’s conduct was strategic.  See Thompson, 9 S.W.3d at 814; McCullough, 116 S.W.3d at 92–93; see also Ex parte Varelas, 45 S.W.3d 627, 632 (Tex. Crim. App. 2001) (holding that reviewing court may not speculate as to why trial counsel failed to request limiting instruction when record is silent, even if court has difficulty understanding counsel’s inaction). Accordingly, Vallejo has not satisfied the first prong of Strickland.  466 U.S. at 687–88, 104 S. Ct. at 2064–65.

Conclusion

          We hold that (1) the identification evidence is legally and factually sufficient to support Vallejo’s conviction for aggravated assault, (2) the trial court did not err in denying Vallejo’s request for a jury charge instruction on the lesser-included offense of assault, and (3) Vallejo has failed to demonstrate that he received ineffective assistance of counsel at trial.  We therefore affirm the judgment of the trial court.  

                                                                             Jane Bland

                                                                             Justice

Panel consists of Justices Nuchia, Hanks, and Bland.

Do not publish.  Tex. R. App. P. 47.2(b).