NUMBER 13-03-071-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JAMES LEO BOLDEN,                                                               Appellant,

v.

THE STATE OF TEXAS,                                                     Appellee.

On appeal from the 209th District Court of Harris County, Texas.

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez and Garza

Memorandum Opinion by Justice Garza

          Appellant was convicted of aggravated robbery and sentenced to fifty-five years confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant claims that he was denied effective assistance of counsel because his attorney failed to object to the jury charge and misstated the law to the jury. Because appellant has failed to establish ineffective assistance, we affirm his conviction.

I. Standard of Review

          We follow a two-pronged procedure to determine whether representation was so inadequate that it violated the Sixth Amendment right to counsel. Munoz v. State, 24 S.W.3d 427, 433 (Tex. App.—Corpus Christi 2000, no pet.); see also Hernandez v. State, 726 S.W.2d 53, 54–55 (Tex. Crim. App. 1986) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). First, trial counsel’s performance must fall below an objective standard of reasonableness. Hernandez, 726 S.W.2d at 55 (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 686, 694). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. (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. Munoz, 24 S.W.3d 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.–Corpus Christi 1996, no pet.)).

II. Analysis

          During the punishment phase of the trial, the jury considered four unadjudicated extraneous offenses for the purpose of enhancing appellant’s sentence. The charge ultimately given to the jury, however, did not include reasonable doubt language regarding these extraneous offenses. Appellant claims that counsel’s performance was ineffective because she failed to object to the absence of this language from the jury charge. Additionally, appellant argues that trial counsel misstated the law to the jury on the standard of proof applicable to extraneous offenses.

Failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim. Munoz, 24 S.W.3d at 434 (quoting Strickland, 466 U.S. at 700). Having reviewed the record, we conclude that appellant has failed to meet the second prong of Strickland. Strickland, 466 U.S. at 693. There is no reasonable probability that appellant’s sentence would have been different but for trial counsel’s alleged ineffectiveness. Appellant’s videotaped confession as well as the eyewitness testimony clearly established the extraneous offenses beyond a reasonable doubt. Even assuming, arguendo, that counsel’s performance fell below an objective standard of reasonableness, our confidence in the outcome would not be sufficiently undermined to satisfy the second prong of Strickland. Id. III. Conclusion

          Appellant has failed to establish that counsel’s deficient performance prejudiced his defense. Accordingly, we overrule his sole issue on appeal and affirm the judgment of the trial court.