Affirmed and Memorandum Opinion filed April 22, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00201-CR

____________

ELIOTT NATHANIEL GUERRERO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1073367

M E M O R A N D U M  O P I N I O N

A jury found appellant, Eliott Nathaniel Guerrero, guilty of the felony offense of aggravated assault against a public servant. See Tex. Penal Code Ann. ' 22.02 (Vernon Supp. 2007).  The jury assessed punishment at twenty-eight years= confinement in the Institutional Division of the Texas Department of Criminal Justice.  In two issues, appellant challenges the factual sufficiency of the evidence and argues he received ineffective assistance of counsel.  We affirm.

Factual and Procedural Background

At approximately ten o=clock in the evening on June 16, 2006, Sergeant Jay Chase of the Houston Police Department responded to a call for service at the Oak Glenn Apartments located at 5500 Antoine, Houston, Harris County, Texas.  Daniel Ledesma called the police to report that a man with a pistol had assaulted him.  Ledesma described the assailant as a male who was wearing no shirt and blue shorts.  Ledesma notified Chase appellant was in a white van driving through the parking lot.  Chase followed appellant in his marked police vehicle and turned on his siren.  Appellant pulled over, got out of his van, and began to walk away when Chase ordered appellant to get on the ground.  Appellant complied, but while Chase was momentarily distracted, appellant got up, pulled a gun out of his shorts, fired a shot at Chase, and ran away.  Chase fired two shots, hitting appellant once in the back of the leg.  Appellant jumped in the car of another resident of the apartment complex and drove away.  Appellant turned himself in twelve days after the incident.

Sergeant Chase testified the original address he was given over the dispatch, 5700 Antoine, was wrong because there was no apartment complex at that address.  Chase called Ledesma for directions to the correct location, and he testified Ledesma sounded very agitated and scared on the phone.  Chase testified while he was on the phone with Ledesma he could hear voices in the background saying Ado it, do it@ and Acap his ass.@  When Chase arrived at the apartment complex there was a crowd gathered in the parking lot.  According to Chase, he located Ledesma and asked who the individual was with the gun.  While talking to Ledesma, Chase overheard other individuals in the crowd say Ahe has a gun.@  Chase testified Ledesma told him the man with the gun was in a white van driving away through the crowd.  Chase testified the van, as it was driving away, looked as if it were swerving to get around people in order to leave.

According to Chase, he turned his car lights on and began following the van, at which time the van made a sharp right turn, pulled in front of an apartment building, and stopped.  Appellant got out of the van and began walking away from Chase.  Chase testified he ordered appellant to stop and get on the ground, but appellant did not fully comply with his commands.  He stated appellant turned, walked toward him with his hands raised, and asked Chase what the problem was.  Chase had his weapon drawn as appellant very slowly got on the ground.  While appellant was on the ground, a noise momentarily distracted Chase=s attention.

Chase testified when he turned his head back around to focus on appellant, appellant was exploding off of the ground.^[1]  Chase testified as appellant was coming off the ground, appellant reached his hands into his shorts and pulled out what Chase described as a small black automatic pistol.  Chase stated appellant took one or two steps towards him and pointed the pistol at him.  When Chase saw the pistol pointing at him, he took his finger from outside the trigger guard and fired at appellant.  Chase testified he thought he shot at appellant six times, and when he realized appellant was running away he stopped firing.  Immediately after Chase stopped firing, he notified his dispatcher that shots were fired.  Chase testified everything he did that evening was consistent with appellant having fired shots.  Chase later discovered he only fired two shots, not six.  When Chase was recalled to the stand, he testified appellant pulled a firearm on him, the firearm was a deadly weapon, and he felt threatened by the deadly weapon.

Chase admitted to gaps in his memory at the instance of the shooting.  He explained the gaps by stating if a person does not have enough time to process an incident in their mind, they will not remember it.  In this instance, Chase testified too much occurred at once, and he does not specifically recall either being shot at or firing shots at appellant.  Chase testified he had no doubt appellant pulled a gun out of his shorts and pointed it at him.  However, Chase also testified he never saw a gun tucked into appellant=s waistband, and he never noticed any bulge in appellant=s shorts.

Ledesma testified he called the police because he felt his life was in danger.  Ledesma testified appellant and he were having an argument over a gold necklace.  He testified before the argument, when he was sitting in his car and appellant was standing outside his driver=s side window, he saw an old brown automatic gun on the right hip of appellant in appellant=s shorts.  Ledesma stated he had seen the gun before in appellant=s house.  Ledesma testified before the fight progressed, he saw appellant walk to the back porch of an apartment and put something in the barbecue pit.  He also testified he saw appellant walk back to the porch when Chase arrived at the scene.  However, when the argument escalated, Ledesma did not see a gun on appellant. 

Ledesma testified he was eight feet away from appellant when appellant was on the ground.  When Chase told Ledesma to come over by his car, Ledesma began walking backwards, looking over his left shoulder to see where he was going.  Ledesma testified he was still backing up when he heard a single gunshot from his right side, where appellant was located.  Ledesma got on the ground after the first gunshot, and then he heard two more gunshots from his left side, where Chase was located.  He testified of the three gunshots he heard, the one from his right side was louder than the two from his left side.  However, Ledesma admitted that during the time Chase was at the apartment complex, he never saw appellant with a gun in his hand.

Sergeant C.T. Mosqueda, an officer who works in the homicide division in the Houston Police Department, testified he was the one who showed Ledesma and Chase a photo spread to help identify the suspect involved in the incident.  He testified both Ledesma and Chase positively identified appellant as the suspect they saw holding the gun.  Mosqueda further testified it was not unusual, in cases involving a shooting such as this, for there to be only one or two witnesses who can positively identify the shooter.  Additionally, Mosqueda stated he had testified on many occasions such as this where investigations had only yielded eyewitness testimony and nothing else.

Officer E.P. Aguilera testified investigators found two bullet casings and a bullet fragment at the scene.  He testified Chase fired two shots, and had fourteen out of sixteen bullets left in his gun.  Aguilera stated he was not surprised investigators could not find shell casings where appellant was standing at the scene.  According to Aguilera, there are many reasons why a shell casing would not be found.  The reasons include: if the gun was not a semi-automatic, but was a revolver; if the gun jammed and the casing stayed inside of the gun; a car drove by and the casing got lodged in the tire of the car; or someone picked up the shell casing and walked away.  Aguilera testified on many occasions he has failed to find a shell casing after a shooting.  On cross-examination, Aguilera admitted the police did not find a gun at the apartment complex, and admitted the only evidence found at the scene was linked to Chase.

Kim Downs, a firearms examiner for the Houston Police Department Crime Laboratory, testified there were no identifying characteristics to determine from which gun the bullet fragment came.  She also testified the two casings found were from Chase=s gun.  On cross-examination, Downs testified the bullet casing was made of copper-jacketed lead, and Chase=s gun, when brought to the lab, contained six copper-jacketed lead bullets.

Josh Guerrero, appellant=s brother, testified he heard three shots fired.  Josh also testified he never saw a gun on appellant during the argument between appellant and Ledesma.

The final witness called by the State was Jesse Guerrero, appellant=s father.  Jesse testified he heard three shots fired.  He also testified he never saw appellant with a gun during the argument between appellant and Ledesma.

Appellant=s first witness was Anna Marie Guerrero, appellant=s sister-in-law.  Anna testified she overheard Ledesma tell Chase appellant had a gun.  Anna testified she had a clear view of Chase and appellant while they were in the parking lot, directly in front of her apartment.  She testified she never saw a gun on appellant, never saw any bulge in appellant=s pants, and never heard any metal sounding noises as appellant lay on the ground.  She further testified during the entire evening she never saw a gun on appellant.  Anna testified as she walked back into her apartment, she heard gunshots.  According to Anna, the gunshots seemed to come from the area where Chase was, and not from appellant=s direction.  On cross-examination, Anna admitted she heard three shots fired from the parking lot.

Appellant testified on his own behalf.  He testified he saw the police lights while he was driving his van, so he pulled over into the parking lot.  According to appellant, he got out of the van with his hands up and walked toward Chase in order to allow Chase to get a full view of his body.  Appellant admitted he got up and ran after lying on the ground.  Appellant also testified he did not have a gun at any point in the night, and he did not ever point or fire a gun at Chase.  On cross-examination, appellant testified he did not take a step towards Chase or raise his hands towards Chase.  Appellant testified he heard two, possibly three gunshots.  He also admitted he knew from Chase=s testimony and the evidence presented Chase only fired two shots.

Claudia Rivera, a neighbor who lived at the Oak Glenn Apartments, was the final witness for appellant.  She testified she never saw a gun on appellant.  Rivera stated she did not see a gun in appellant=s hands when he got up and ran.  She also testified she heard three gunshots.

The jury subsequently found appellant guilty of the felony offense of aggravated assault against a public servant and assessed punishment at twenty-eight years= confinement.  See Tex. Penal Code Ann. ' 22.02.  This appeal followed. 

                                           Discussion

A.      Is the Evidence Factually Sufficient to Support Appellant=s Conviction?

In appellant=s first issue, he challenges the factual sufficiency of the evidence.^[2]

Specifically, appellant contends the evidence is factually insufficient to prove appellant possessed a gun because the only evidence proving appellant had a gun came from Chase, and Chase=s testimony was unreliable.  Appellant argues Chase fabricated the whole story because he had a gap in his memory, he was tired, it was dark in the parking lot, and the scene of the incident was chaotic.

1.       Standard of Review

In a factual sufficiency review, we consider all the evidence in a neutral light.  Prible v. State, 175 S.W.3d 724, 730B31 (Tex. Crim. App. 2005).  The evidence may be factually insufficient in two ways.  See id. at 731.  First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust.  Id.  Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough the beyond-a-reasonable-doubt standard could not have been met.  Id.  In conducting a factual sufficiency review, we must employ appropriate deference so we do not substitute our judgment for that of the fact finder.  Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).  Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

2.       The Evidence is Factually Sufficient

Initially, we address appellant=s contention regarding the admitted gaps in Chase=s memory.  Appellant contends Chase had gaps in his memory during the alleged incident, and he fabricated the entire story of appellant possessing a gun.  Appellant argues Chase  Acreated a lot of facts considering that he did admit gaps in his memory.@

Chase did admit to having a gap in his memory during the incident; however, the gap in his memory was only during the few seconds the shots were fired.  Chase testified he could recall at will the fact appellant had a gun, but could not recall at will hearing the gunshot.  Chase further testified he saw appellant pull what looked like a small black automatic pistol from his shorts and point the gun at him.  Also, immediately following the incident, Chase notified the police dispatch shots were fired.  Chase stated everything he did that evening surrounding the incident was consistent with shots being fired at him, but he could not specifically recall the moment of the shooting because A[he] was [unable] to freeze it in [his] mind because of the events that happened after that.@  Chase testified there was no doubt in his mind appellant pulled a gun on him.  Questions about a witness=s memory and related resolution of conflicting testimony are within the province of a jury to resolve, and an appellate court should defer to the jury=s findings of fact regarding that witness=s testimony. See Vasquez v. State, 67 S.W.3d 229, 236B38 (Tex. Crim. App. 2003).

Appellant also contends Chase=s lack of sleep was a contributing factor to him erroneously thinking he saw appellant with a gun.  Appellant relies on testimony from Chase to support his argument, but we find this argument has no merit.  The relevant part of the record is the following:

DEFENSE COUNSEL:      When you have to work a 14-hour day like that, working 60 to 70 hours a week, when is the last time you had a vacation before this incident, do you remember?

CHASE:                          Actually can=t remember, it=s been quite awhile.

DEFENSE COUNSEL:      How do you stay awake when you=re working those kinds of hours?

CHASE:                          It=s just a function of my job.  It=s what I do.

There is no evidence in the record that establishes Chase was tired on the day of the incident.  The above testimony merely establishes Chase works sixty to seventy hours per week, and has not taken a vacation in some time.

Appellant next contends the Autter chaos@ at the scene was another contributing factor to Chase erroneously thinking appellant had a gun.  When arguing there was Autter chaos,@ appellant relies on Chase=s testimony there were Aat least a hundred people@ in the parking lot when he arrived on the scene, and they would not leave as he approached.  The only testimony in the record that could possibly be seen to support this argument is Chase=s testimony the people in the parking lot gave him cause for concern.  Also, Anna Guerrero testified there were only thirty or more people in the parking lot, which is a great deal lower than the 100 Chase estimated.  There is no evidence in the record to show the scene was chaotic.

Finally, appellant argues the parking lot where the shooting took place was dark, and that factor also led to Chase=s erroneous testimony.  While Ledesma testified the parking lot was dark on the night in question, Chase testified he had a spotlight illuminating appellant during the shooting.  Appellant also admitted Chase had a spotlight pointed at him that was so bright it prevented him from seeing Chase.  There is no evidence in the record that establishes Chase could not see appellant clearly due to a lack of lighting in the parking lot.

Additionally, appellant=s contentions regarding Chase=s alleged lack of sleep, alleged chaos at the scene, and alleged poor lighting in the parking lot are all issues regarding the credibility of Chase=s testimony.  These contentions contravene the well-established standard of review for a jury=s evaluation of the credibility of witnesses.  The jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000); Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  In addition, the jury may believe or disbelieve all or part of any witness=s testimony.  Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998) (en banc).  Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury.  Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995) (en banc).  Thus, the jury was entitled to believe Chase=s testimony and make reasonable inferences therefrom. 

After reviewing the evidence appellant claims was most important to show appellant did not have a gun, we turn to the evidence showing appellant did have a gun.  In keeping with the standard of review, we are required to look at all the evidence in a neutral light. Prible, 175 S.W.3d at 730B31. 

Chase testified while he was on the phone with Ledesma, en route to the apartment complex, he overheard other individuals in the background saying Acap his ass@ and Ado it, do it.@  When Chase arrived at the scene and located Ledesma, he overheard other individuals saying Ahe has a gun, he has a gun.@  Chase testified when appellant jumped up off the ground, he saw appellant reach his hand into his shorts and pull out what looked like a small, black automatic pistol.  Immediately following the shooting, Chase notified dispatch shots were fired.  On both direct and cross-examination, Chase testified he had no doubt appellant pulled a gun on him.

Ledesma testified during his altercation with appellant he noticed an old, brown, rusty gun tucked into appellant=s shorts.  He also testified appellant went to the back porch of an apartment and put something in a barbecue pit, but before appellant got in his white van, Ledesma saw him return to the patio where the barbecue pit was located.  When Ledesma was walking backward toward Chase, he testified he heard a gunshot from his right side, where appellant was standing, and two more shots from his left side, where Chase was standing.

Other than Ledesma, four other witnesses testified they heard three gunshots.  Officer Aguilera testified he examined Chase=s gun and determined Chase fired only two bullets.

After neutrally examining all the evidence, we hold the evidence supporting the verdict is not so weak the verdict is clearly wrong and manifestly unjust; nor was the contrary evidence so strong the beyond-a-reasonable doubt standard could not have been met.  The evidence is factually sufficient to support appellant=s conviction.  Accordingly, we overrule appellant=s first issue.   

B.      Did Appellant Receive Ineffective Assistance of Counsel?

In his second issue, appellant argues he received ineffective assistance of counsel.  Specifically, appellant argues he was denied effective assistance of counsel because his trial counsel failed to make numerous objections to prejudicial testimony and failed to move for a mistrial after an objection was sustained.

1.       Standard of Review

In reviewing claims of ineffective assistance of counsel, we apply a two-prong test. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)). To establish ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that (1) his trial counsel's representation was deficient in that it fell below the standard of prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different.  Id.  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).

          An accused is entitled to reasonably effective assistance of counsel.  King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983).  However, reasonably effective assistance of counsel does not mean an accused is entitled to error-free representation.  Campbell v. State, 68 S.W.3d 747, 764 (Tex. App.CHouston [14th Dist.] 2001), aff=d, 85 S.W.3d 176 (Tex. Crim. App. 2002).  When evaluating a claim of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  There is a strong presumption counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy.  Salinas, 163 S.W.3d at 740; Stults v. State, 23 S.W.3d 198, 208 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  To overcome the presumption of reasonable professional assistance, Aany allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@  Thompson, 9 S.W.3d at 813.  When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.  Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).  When the record is silent as to the reasons for counsel's conduct, a finding that counsel was ineffective would require impermissible speculation by the appellate court.  Stults, 23 S.W.3d at 208.  Absent specific explanations for counsel's decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim.  See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

2.       Appellant Received Effective Assistance of Counsel

Appellant=s argument centers around five instances where appellant claims trial counsel failed to make objections to allegedly prejudicial testimony, and one instance where trial counsel failed to move for a mistrial after an objection was sustained.

First, appellant contends Chase=s testimony that other witnesses told him appellant had a gun was hearsay, and trial counsel should have objected to the statement.  The State argues Chase=s testimony could be characterized as an exception to the hearsay rule, as either a present sense impression or an excited utterance. See Tex. R. Evid. 803 (1)B(2).  Therefore, according to the State, the failure to object was harmless because the trial judge likely would have overruled the objection. 

Second, appellant argues trial counsel should have moved for a mistrial after Chase made a statement regarding appellant having tattoos that were consistent with prison tattoos.  Trial counsel=s objection was sustained, but trial counsel did not move for mistrial.  However, appellant=s trial counsel introduced evidence at another point during the trial that appellant went to prison, which appellant fails to complain about on appeal.  Second, as the State points out, a mistrial will typically only be granted when an event at trial is Aso emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant.@ Sanders v. State, 25 S.W.3d 854, 858 (Tex. App.CHouston [14th Dist.] 2000, pet. dism=d).  In this case, it was highly unlikely the court would have granted a mistrial.  Furthermore, the State argues the defense counsel=s failure to move for a mistrial could have been part of his trial strategy to downplay the evidence. 

Lastly, appellant complains of four other incidents at trial in which defense counsel failed to object.  These include Chase=s testimony about gang related activity in the area of the apartment complex^[3]; Chase=s observation appellant=s van was swerving through the crowd in a manner that looked like he was trying to find a way to leave^[4]; Chase=s testimony appellant=s conduct, when he was ordered to the ground by Chase, was out of context

with typical behavior of suspects Chase had encountered before^[5]; and Chase=s opinion that Ledesma, Agiven the physics and the situation,@ had a clear line of sight of appellant.^[6]  The State argues the defense counsel=s failure to object could, again, be explained as a trial strategy to downplay the evidence and not draw too much attention to it.

Appellant has failed to direct this court to any portion of the record containing an explanation for his counsel=s decision not to object to allegedly prejudicial statements and his counsel=s decision not to move for a mistrial after a properly sustained objection.  Therefore, absent a contrary showing in the record, it must be presumed that appellant=s counsel=s failure to object and failure to move for a mistrial was part of a valid, considered trial strategy, and did not constitute deficient performance. See Thompson, 9 S.W.3d at 813B14.  Further, trial counsel=s alleged errors do not rise to the level such that no reasonable attorney could have made such trial decisions.  Appellant failed to rebut the strong presumption counsel was performing in a reasonably professional manner.  Because appellant failed to establish the first prong of Strickland, we need not reach the second prong.  Failure to prove both prongs vitiates the claim.  See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.  Accordingly, we hold appellant received effective assistance of counsel.  We overrule appellant=s second issue. 

Conclusion

Having overruled each of appellant=s issues, we affirm the judgment of the trial court.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed April 22, 2008.

Panel consists of Chief Justice Hedges and Justices Anderson and Boyce.

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