Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 320th District Court Potter County, Texas
Trial Court Nos. 70, 490-D & 70, 491-D, Honorable Don R.
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Quinn Chief Justice.
Paul Harper (appellant) appeals his convictions for
unlawfully possessing a firearm and possessing
methamphetamine with intent to deliver. Through a single
issue, he contends he received ineffective assistance of
counsel during punishment. We affirm.
recent decision of Ex parte Bowman, ___ S.W.3d ___,
2017 Tex.Crim.App. LEXIS 582 (Tex. Crim. App. June 28, 2017),
the Court of Criminal Appeals reiterated the standard applied
when reviewing ineffective assistance claims.
In order to prevail on a Sixth Amendment claim of ineffective
assistance of counsel, a [defendant] must show, by a
preponderance of the evidence, that "counsel's
performance was deficient." Strickland v.
Washington, 466 U.S. 668, 687 (1984); Lopez v.
State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
[They] must show that counsel's performance failed to
satisfy an objective standard of reasonableness under
prevailing professional norms. Strickland, 466 U.S.
at 688. A reviewing court must assess reasonableness under
the circumstances of the particular case "viewed as of
the time of counsel's conduct." Id. at 688,
690. Isolated errors or omissions of counsel do not amount to
deficient performance, which is judged by the totality of the
representation. Robertson v. State, 187 S.W.3d 475,
483 (Tex. Crim. App. 2006). Constitutionally competent legal
representation is not a static thing: "[t]here are
countless ways to provide effective assistance in any given
case." Strickland, 466 U.S. at 689.
"[C]ounsel's function, as elaborated in prevailing
professional norms, is to make the adversarial testing
process work in the particular case." Id. at
690. The presumption is that counsel "rendered adequate
assistance and made all significant decisions in the exercise
of reasonable professional judgment." Id. [A
defendant] who cannot overcome this presumption by a
preponderance of the evidence will not succeed in his Sixth
Amendment claim. See id. at 697 ("[T]here is no
reason for a court deciding an ineffective assistance claim .
. . to address both (the deficiency prong and prejudice prong
of the Strickland standard) if the defendant makes an
insufficient showing on one."). The [defendant] must
identify with particularity "the acts or omissions of
counsel that are alleged not to have been the result of
reasonable professional judgment." Id. at 690.
* * * * *
An advocate's strategic decisions must be informed by a
reasonable preliminary investigation. "[C]ounsel has a
duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations
unnecessary." Id. at 691. "In any
ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonableness in
all the circumstances, applying a heavy measure of deference
to counsel's judgments." Wiggins v. Smith,
539 U.S. 510, 521-22 (2003). "[Strategic choices made
after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable[.]"
Strickland, 466 U.S. at 690.
Ex parte Bowman, ___ S.W.3d at ___, 2017
Tex.Crim.App. LEXIS 582, at *25-26.
appellant contends that "by merely resting and not
putting on any punishment evidence defense counsel was
deficient." Therefore, "he effectively had no
counsel in the punishment portion of the trial." He,
further, argues that "he was denied his Sixth Amendment
right to effective assistance of counsel."
clear that defense counsel need not present mitigating
evidence in every case to be deemed reasonably effective.
Wiggins v. Smith, 539 U.S. 510, 533, 123 S.Ct. 2527,
2541, 156 L.Ed.2d 471 (2003) (stating that
"Strickland does not require counsel to
investigate every conceivable line of mitigating evidence no
matter how unlikely the effort would be to assist the
defendant at sentencing. Nor does Strickland require
defense counsel to present mitigating evidence at sentencing
in every case. Both conclusions would interfere with the
'constitutionally protected independence of
counsel'"). Furthermore, Bowman mandates
that the reasonableness of an attorney's performance be
assessed against the circumstances of the particular case.
Combining what both Wiggins and Bowman tell
us, we observe two things.
one of the circumstances incremental to appellant's
argument and burden is the existence of evidence potentially
influencing appellant's punishment in a favorable way. If
none exists then counsel could hardly be castigated for not
presenting it. See Medina v. State, No. AP-76, 036,
2011 Tex.Crim.App. Unpub. LEXIS 1, at *44 (Tex. Crim. App.
Jan. 12, 2011) (not designated for publication) (holding that
"[b]y not specifying what evidence his counsel should
have presented, the appellant has failed to present a basis
to conclude that defense counsel's decision not to
present evidence was unreasonable, or that there is a
reasonable probability that the result would have been
different"). Second, should appellant clear that initial
hurdle, he should then try to explain why the decision to
withhold the evidence was unreasonable. And, since the burden
lay with appellant to establish his claim by a
preponderance of the evidence, we need not sua
sponte peruse the record for the requisite evidence or
contrive the missing explanation.
said nothing about the existence of mitigating evidence
favorable to him. Nor did he attempt to cite us to such
evidence. Similarly missing is argument purporting to explain
why withholding the unknown evidence was unreasonable, under
the circumstances. Because appellant cleared neither of the
two hurdles mentioned above, we cannot say that he carried
his burden to show his trial ...