                               NO. 12-09-00217-CR

                      IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                  TYLER, TEXAS

JOSHUA DELANEY,                                '          APPEAL FROM THE 114TH
APPELLANT

V.                                             '          JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                       '          SMITH COUNTY, TEXAS


                                MEMORANDUM OPINION
       Joshua Delaney appeals his conviction for aggravated robbery, for which he was sentenced
to imprisonment for life. In his sole issue, Appellant contends that he received ineffective
assistance of counsel during his trial on punishment. We affirm.


                                        BACKGROUND
       Appellant pleaded guilty to the offense of aggravated robbery. He was placed on deferred
adjudication community supervision. In 2004, the trial court revoked Appellant’s community
supervision, found him guilty of aggravated robbery, and sentenced him to life imprisonment.
We reversed that sentence on appeal and remanded the case for another punishment hearing. See
Delaney v. State, No. 12-07-00035-CR, 2008 WL 2571715 (Tex. App.–Tyler June 30, 2008, no
pet.). After remand, the trial court sentenced Appellant to life imprisonment. This appeal
followed.
                              INEFFECTIVE ASSISTANCE OF COUNSEL
       In his sole issue, Appellant contends that he received ineffective assistance of counsel at
his trial on punishment. Specifically, Appellant argues that his trial counsel was ineffective
because he failed to present mitigating evidence.
Standard of Review and Applicable Law
       Claims of ineffective assistance of counsel are evaluated under the two step analysis
articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984).
The first step requires the appellant to demonstrate that trial counsel’s representation fell below an
objective standard of reasonableness under prevailing professional norms. See Strickland, 466
U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or
omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell
below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500
(Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any
portion of trial counsel's representation, but will judge the claim based on the totality of the
representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
       To satisfy the Strickland standard, the appellant is also required to show prejudice from the
deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim.
App. 1999). To establish prejudice, the appellant must prove that but for counsel’s deficient
performance, the result of the proceeding would have been different. See Strickland, 466 U.S.
at 694, 104 S. Ct. at 2068.
       In any case considering the issue of ineffective assistance of counsel, we begin with the
strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994).       We must presume counsel’s actions and decisions were reasonably
professional and were motivated by sound trial strategy. See id. The appellant has the burden of
rebutting this presumption by presenting evidence illustrating why his trial counsel did what he
did. See id. The appellant cannot meet this burden if the record does not affirmatively support
the claim. See Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998) (inadequate record
on direct appeal to evaluate whether trial counsel provided ineffective assistance). A record that
specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an
ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.–Houston [1st Dist.]
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1994, pet. ref'd).
Discussion
        In the case at hand, Appellant’s trial counsel offered no evidence during the trial on
punishment. After closing arguments, Appellant relayed to the trial court that he told his trial
counsel about sources of potentially mitigating evidence prior to the trial, including that he was
working on his associate’s degree in biblical studies, he received his pastoral attainment, he had a
history of homelessness, his probation officer was aware of his attempts to obtain employment,
and that he had employment that was set to begin the day after his arrest. He argues that at least
three types of potential witnesses could have been called: professors in his associate’s degree
program, his church instructors, and his probation officer.
        Yet, Appellant's factual assertions concerning such mitigating evidence and the uncalled
witnesses that would testify thereto are not supported by the record. See Ex parte White, 160
S.W.3d 46, 52 (Tex. Crim. App. 2004) (holding that to obtain relief on ineffective assistance of
counsel claim based on uncalled witness, accused must show witness had been available to testify
and testimony would have been of some benefit to defense). Appellant made no showing that
these witnesses were in fact available and that Appellant would have benefitted from their
testimony.
        Appellant nevertheless argues that the failure to present any mitigating evidence
constitutes a complete abdication of trial counsel’s obligation and that there can be no reasonable
basis to adopt such a position. But Appellant did not file a motion for new trial and call his trial
counsel as a witness to explain his reasoning. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim.
App. 2002) (stating that defense counsel should be given opportunity to explain actions before
being condemned as unprofessional and incompetent); see also Anderson v. State, 193 S.W.3d 34,
39 (Tex. App.–Houston [1st Dist.] 2006, pet. ref’d) (holding that because appellant did not call his
trial counsel during motion for new trial hearing to give reasons for failure to investigate or present
mitigating evidence, record does not support ineffective assistance claim). When the record fails
to show why counsel did not present any evidence at the trial on punishment, we cannot conclude
that counsel’s performance was deficient. See Jackson, 877 S.W.2d at 771-72.
        Appellant has not overcome the strong presumption that counsel’s conduct fell within the
wide range of professional assistance. See Strickland, 466 U.S. at 689-90, 104 S. Ct. at 2065.
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Accordingly, we overrule Appellant’s sole issue.




                                                    DISPOSITION
         We affirm the judgment of the trial court.




                                                                BRIAN HOYLE
                                                                   Justice


Opinion delivered February 17, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)
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