                              NUMBER 13-08-00022-CR

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


STEVEN CURTIS LEWIS,                                                             Appellant,

                                              v.

THE STATE OF TEXAS,                                                               Appellee.


                    On appeal from the 163rd District Court
                          of Orange County, Texas.


                           MEMORANDUM OPINION

                  Before Justices Rodriguez, Garza, and Vela
                   Memorandum Opinion by Justice Garza

       Appellant, Steven Curtis Lewis, was convicted for the offense of aggravated robbery

and was sentenced to eighteen years’ imprisonment. See TEX . PENAL CODE ANN . §

29.03(a) (Vernon 2003). Lewis now appeals, contending that his counsel was ineffective

for failing to present sufficient mitigation evidence and for producing no witnesses to testify

at the sentencing phase of the trial. We affirm.
                                                I. BACKGROUND

        On January 25, 2007, an Orange County grand jury indicted Lewis on two counts

of aggravated robbery.1 See id. On September 19, 2007, Lewis sent a request to his

attorney asking that she remove herself from the case, in part because he believed she

was a “plea bargain lover [and] not a trail [sic] attorney.” Subsequently, his attorney filed

a motion to withdraw as counsel. At a hearing on September 20, 2007, Lewis expressed

his discontent with his appointed attorney and asked the court to be assigned new

representation. The court denied counsel’s motion to withdraw. On September 24, 2007,

the trial court held a plea hearing at which Lewis pleaded guilty to count one of the

indictment. The court also ordered a pre-sentence investigation report to be prepared.

        The sentencing hearing took place on October 18, 2007, at which point the trial

court permitted Lewis to make a statement requesting leniency. In response to the State’s

argument that Lewis’s criminal history be considered in determining his punishment,

Lewis’s attorney urged that his actions were not premeditated and asked that the judge

take into account Lewis’s grandmother’s ill health and his desire to have a life with her after

his release from the penitentiary.               The trial court, taking note of the pre-sentence
        1
            The first count of the indictm ent alleged that Lewis:

        . . . while in the course of com m itting theft and with intent to obtain and m aintain control of
        property of Ronald Mills, without effective consent of the said Ronald Mills, and with the intent
        to deprive that said Ronald Mills of said property, did then and there by using and exhibiting
        a deadly weapon, to wit: a knife, that in the m anner of its use and intended use is capable
        of causing serious bodily injury and death, intentionally and knowingly cause bodily injury to
        Ronald Mills by stabbing the said Ronald Mills with said knife.

See T EX . P EN AL C OD E A N N . § 29.03(a)(2) (Vernon 2003). The second count alleged that Lewis:

        . . . while in the course of com m itting theft of property of Ronald Mills, and with intent to
        obtain and m aintain control of said property, [did] intentionally and knowingly cause serious
        bodily injury to Ronald Mills by stabbing the said Ronald Mills with a knife.

See id. § 29.03(a)(1) (Vernon 2003).

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investigation report, the arguments of counsel, and Lewis’s statement, sentenced Lewis

to eighteen years’ confinement in the Institutional Division of the Texas Department of

Criminal Justice. The judgment and sentence were entered on October 24, 2007. Lewis

now appeals.

                                       II. DISCUSSION

       By his sole issue, Lewis contends that his Sixth Amendment right to counsel was

violated because his counsel was ineffective for failing to present sufficient mitigating

evidence and for producing no witnesses to testify at the sentencing hearing. See U.S.

CONST . amend. VI.

       To establish ineffective assistance of counsel, Lewis must show (1) his attorney’s

representation fell below an objective standard of reasonableness, and (2) there is a

reasonable probability that, but for his attorney’s errors, the result of the proceeding would

have been different. See Strickland v. Washington, 466 U.S. 668, 684 (1984); Hernandez

v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Jaynes v. State, 216 S.W.3d 839, 851

(Tex. App.–Corpus Christi 2006, no pet.). Whether this test has been met is to be judged

on appeal by the totality of representation, not by any isolated acts or omissions. Jaynes,

S.W.3d 839 at 851. The burden rests on the appellant to prove ineffective assistance of

counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999) (citing Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App.

1984)). Our review of counsel’s representation is highly deferential, and we will find

ineffective assistance only if the appellant overcomes the strong presumption that his

counsel’s conduct fell within the wide range of reasonable professional assistance. See

Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. Moreover, the acts or omissions

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that form the basis of appellant’s claim of ineffective assistance must be supported by the

record. Thompson, 9 S.W.3d at 814; Jaynes, 216 S.W.3d at 851. A silent record which

provides no explanation for counsel’s actions usually will not overcome the strong

presumption of reasonable assistance. Thompson, 9 S.W.3d at 813-14.

        Lewis claims that his counsel offered insufficient mitigating evidence at sentencing.

The only evidence brought on his behalf was his own self-serving statement; Lewis

contends that a reasonably prudent attorney would have done more than merely have the

defendant ask the court for leniency. Specifically, Lewis asserts that his counsel should

have put witnesses on the stand to explain his background and why he should be granted

leniency. However, Lewis has not indicated what, if any, witness testimony or other

mitigating evidence could have been produced that might have altered the outcome of the

sentencing hearing.2 Lewis asserts that the trial court was “not given anything to work with”

at trial and argues that if adequate mitigation evidence had been provided, the trial court

may have had reason to order a lesser sentence. However, contrary to Lewis’s assertion,

the record shows that the trial court did have the opportunity to review a pre-sentence

investigation report and Lewis’s plea for leniency in determining his sentence. Lewis baldly

asserts that “[i]t can never be said to be prudent trial strategy to present such little

mitigation evidence.” But Lewis has shown no reasonable probability that, but for counsel’s

allegedly deficient performance, the result of the sentencing phase would have been

different. See Strickland, 466 U.S. at 684; Hernandez, 726 S.W.2d at 57; Jaynes, 216


        2
           Lewis states that his counsel “should have put witnesses on the stand that further explained the
history of Mr. Lewis and how it had form ed the individual he is today. She could have found form er teachers,
relatives, neighbors, or friends that could com plete this picture.” Lewis does not, however, specify what any
such testim ony would have revealed, nor does he explain how any such testim ony m ight have led to a lesser
sentence.

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S.W.3d at 851.

       Moreover, the record reveals no reasoning for his counsel’s actions regarding the

alleged errors. Lewis, therefore, has failed to meet his burden in rebutting the strong

presumption of reasonable assistance, see Jaynes, 216 S.W.3d at 851, and he has failed

to establish that counsel’s representation fell below an objective standard of

reasonableness. See Lockett v. State, 874 S.W.2d 810, 817 (Tex. App.–Dallas 1994, no

writ) (explaining that the court will overrule appellant’s claim if nothing in the record shows

appellant’s counsel’s performance fell below an objective standard of reasonableness).

       We conclude that Lewis has not shown that his trial counsel offered ineffective

assistance of counsel. Accordingly, his sole issue is overruled.

                                       III. CONCLUSION

       We affirm the judgment of the trial court.



                                                    DORI CONTRERAS GARZA,
                                                    Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 26th day of June, 2008.




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