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Garza v. State

When an ineffective assistance claim is made, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. On this record, to find appellant's counsel ineffective, the court would have to engage in prohibited speculation. For this reason, appellant has not met either prong of the Strickland test, set out in the Supreme Court decision Strickland v. Washington . Amarillo Court of Appeals, No. 07-09-0025-CR, 10-15-2009

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Before QUINN, C. J., and CAMPBELL and PIRTLE, JJ.

OPINION

Appellant, Brian Garza, was convicted by a jury of evading arrest by use of a motor vehicle,*fn1 a state jail felony punishable as a third degree felony by virtue of a deadly weapon finding.*fn2 During the punishment phase of the trial, Appellant pled true to an enhancement allegation*fn3 and the jury sentenced him to seventeen years confinement. Appellant asserts three issues asking whether: (1) the result of the proceeding would have been different had he received effective assistance from his counsel; (2) the trial court committed error by charging the jury with a deadly weapon instruction when evidence of actual endangerment was factually insufficient to justify a finding that the motor vehicle was used as a deadly weapon; and (3) the trial court’s judgment of conviction should be modified to reflect the correct offense level.

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