Alcala, J., not participating.

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated robbery and sentenced to imprisonment for life. The First Court of Appeals affirmed his conviction. Martinez v. State, No. 01-07-00921-CR (Tex. App.-Houston [1st Dist.] Sept. 17, 2009, pet. ref'd).

Applicant contends that trial counsel failed to object to the jury instructions at punishment. The trial court made findings of fact and conclusions of law and recommended that we deny relief. The trial court determined that Applicant had not established that counsel's performance was deficient and that, but for counsel's alleged deficient performance, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668 (1984). We do not agree with the trial court's conclusion regarding deficient performance, but based on our own independent review of the record, we agree that Applicant has not demonstrated that he was prejudiced. Accordingly, relief is denied.

Filed: August 24, 2011

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