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Martinez v. State

As the record is silent on trial counsel's reasoning or strategy in refraining from discussing or questioning about the jury's consideration of the minimum punishment, the court of appeals presumed that counsel?s action was strategic. Therefore, appellant did not establish the first prong of the Strickland test, established in Strickland v. Washington, because appellant did not show that counsel's performance fell below an objective standard of reasonableness. Houston Court of Appeals, No. 01-07-00921-CR, 09-17-2009

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OPINION

Appellant, Michael Martinez, appeals from the trial court’s judgment ordering that he serve life in prison for aggravated robbery. See Tex. Penal Code Ann. § 29.03 (Vernon 2003). Appellant pleaded not guilty to the jury, but the jury found him guilty and determined his sentence. In three issues, appellant contends the evidence is factually insufficient; his attorney rendered ineffective assistance of counsel during the voir dire phase of trial by failing to inquire whether the jurors could consider the minimum punishment; and the trial court committed harmful error by failing to sua sponte instruct the jury on the State’s burden to prove extraneous offenses beyond a reasonable doubt in the punishment phase of trial. We conclude the evidence is factually sufficient; appellant’s attorney did not render ineffective assistance during voir dire; and the failure to include the “beyond a reasonable doubt instruction” did not egregiously harm appellant. We affirm.

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