Affirmed and Memorandum Opinion filed October 23, 2018.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00612-CR

                        JOHNNY MARTINEZ, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 208th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1454811

                  MEMORANDUM OPINION

      Appellant pleaded guilty to sexual assault. Punishment was tried to the court
without an agreed recommendation, and the court sentenced appellant to five years’
imprisonment. In a single issue, appellant contends that his trial counsel “was
ineffective in that he provided deficient mitigation evidence for the court to consider
at punishment as to whether granting Appellant deferred adjudication probation
would be in the best interest of the victim as required by Art. 42A.101(a) of the
Texas Rules of Criminal Procedure.” We overrule his issue because appellant has
not shown whether any additional mitigating evidence was available. Thus, we
affirm.

      To prevail on a claim of ineffective assistance, an appellant must prove by a
preponderance of the evidence that (1) counsel’s performance was deficient by
falling below an objective standard of reasonableness and (2) counsel’s deficiency
caused the appellant prejudice such that there is a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different. See
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); Perez v. State, 310
S.W.3d 890, 892–93 (Tex. Crim. App. 2010). In assessing whether trial counsel’s
failure to investigate and present mitigating evidence during punishment
proceedings caused prejudice to an appellant, “we reweigh the evidence in
aggravation against the totality of available mitigating evidence.” Wiggins v. Smith,
539 U.S. 510, 534 (2003). We ask whether there is a reasonable probability that,
absent the deficient performance, the sentencer would have assessed a more lenient
punishment. See Miller v. State, 548 S.W.3d 497, 499 (Tex. Crim. App. 2018).

      But, an appellant cannot establish ineffective assistance based on a failure to
present mitigating evidence when the appellant has not shown that additional
mitigating evidence was available. See Bone v. State, 77 S.W.3d 828, 834–35 (Tex.
Crim. App. 2002) (holding that the appellant failed to establish prejudice based on
trial counsel’s failure to produce more mitigating evidence when the record did not
show that other mitigating evidence existed); Narvaiz v. State, 840 S.W.2d 415, 434
(Tex. Crim. App. 1992) (“[S]ince appellant does not explain what mitigating
evidence his trial counsel should have proffered, we cannot possibly find that a
failure to proffer such evidence constituted ineffective assistance.”); see also
Martinez v. State, 449 S.W.3d 193, 209–10 (Tex. App.—Houston [1st Dist.] 2014,
pet. ref’d) (overruling ineffective assistance claim based on failure to present

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mitigating evidence at punishment because the appellant “presented no specific
indication of the evidence that he claims should have been introduced by his trial
counsel, nor is there any indication that such evidence actually exists”).

      Appellant does not identify any evidence that counsel failed to present to the
trial court concerning whether granting appellant deferred adjudication probation
would be in the best interest of the victim. We cannot speculate about whether any
such evidence existed, whether it would have been favorable to appellant, or whether
appellant’s trial counsel intentionally declined to question the witnesses further
because additional testimony might not have been beneficial. See Bone, 77 S.W.3d
at 834 n.21. “Speculation about what other evidence might or might not have been
available is precisely why ineffective assistance of counsel claims should rarely be
brought on direct appeal.” Id.

      Because appellant does not identify what mitigating evidence his trial counsel
should have proffered, we cannot possibly find that a failure to proffer such evidence
constituted ineffective assistance. See Narvaiz, 840 S.W.2d at 434.

      Appellant suggests in his brief that trial counsel failed to advise appellant that
a trial court may only place a defendant on deferred adjudication probation if the
court finds that deferred adjudication probation is in the best interest of the victim.
Appellant contends that if he had been properly advised, he would have proceeded
to a jury trial, where the finding would not have been required. However, this
allegation of ineffectiveness must be overruled because nothing in the record
supports appellant’s contentions that trial counsel failed to advise appellant or that
appellant would have proceeded otherwise. See, e.g., Salinas v. State, 163 S.W.3d
734, 740 (Tex. Crim. App. 2005) (“To overcome the presumption of reasonable
professional assistance, any allegation of ineffectiveness must be firmly founded in



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the record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” (quotation omitted)).

      Appellant’s sole issue is overruled. The trial court’s judgment is affirmed.




                                          /s/       Ken Wise
                                                    Justice




Panel consists of Justices Jamison, Wise, and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).




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