No. 09-06-428 CR
Submitted on July 28, 2008.
Opinion Delivered October 15, 2008. DO NOT PUBLISH.
On Appeal from the 359th District Court, Montgomery County, Texas, Trial Cause No. 06-09-09204-CR.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
HOLLIS HORTON, Justice.
David Freddy Rubio pled guilty to the second-degree felony offense of indecency with a child by sexual contact. See Tex. Pen. Code Ann. § 21.11(a)(1) (Vernon 2003). The child was four years old at the time of the offense. The jury assessed punishment at twenty years in prison. Rubio appeals and raises one issue in which he contends he received ineffective assistance of counsel.
Standard of Review
To prove ineffective assistance of counsel, an "appellant must establish both that his trial counsel performed deficiently and that the deficiency operated to prejudice him." State v. Morales, 253 S.W.3d 686, 696 (Tex.Crim.App. 2008) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In evaluating whether trial counsel performed deficiently, "reviewing courts must not second-guess legitimate strategic or tactical decisions made by trial counsel in the midst of trial, but instead `must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]'" Id. (quoting Strickland, 466 U.S. at 689). To satisfy the second prong of Strickland, an appellant must show that trial counsel's deficient performance prejudiced appellant's defense. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). To do so, the appellant must show there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Id. (citing Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002)). Showing that counsel's alleged errors conceivably affected the proceeding's outcome is not enough. Ex parte Varelas, 45 S.W.3d 627, 629 (Tex.Crim.App. 2001). The appellant must show the existence of evidence that probably would have led to a "not guilty verdict or a lesser punishment." Bone, 77 S.W.3d at 837; see Ladd v. State, 3 S.W.3d 547, 570 (Tex.Crim.App. 1999) (finding that relief is precluded when appellant makes no effort to prove the prejudice prong of Strickland); Mitchell v. State, 989 S.W.2d 747, 748 (Tex.Crim.App. 1999) (finding that "a defendant claiming ineffective assistance of counsel must affirmatively prove prejudice"). Analysis
Rubio claims that his counsel repeatedly distanced himself from Rubio and thereby virtually abandoned him. Rubio also claims that trial counsel introduced prejudicial evidence by eliciting testimony about Rubio's prior sentence for failure to stop and give information. However, Rubio does not assert that his attorney failed to introduce evidence that likely would have led to the jury's giving him a lesser sentence. See Bone, 77 S.W.3d at 837; Ladd, 3 S.W.3d at 570; Mitchell, 989 S.W.2d at 748. The State first argues that Rubio failed to show that, but for trial counsel's alleged errors, he would have received a lesser punishment. We agree. Here, Rubio pled guilty, and the only issue before the jury was punishment. Rubio's own testimony supports the punishment assessed by the jury. When asked on direct examination what punishment he should receive, Rubio replied: "If I were in the mother's place, more than 20 years. What I did doesn't have any pardon." The jury sentenced Rubio to twenty years. In light of his own testimony and in the absence of evidence favorable to him, we cannot say that Rubio probably would have received a lighter sentence but for his attorney's allegedly deficient performance. We find that Rubio has failed to affirmatively demonstrate prejudice, and we overrule his sole appellate issue. The trial court's judgment is affirmed. AFFIRMED.