Opinion issued February 11, 2016




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-15-00484-CR
                              NO. 01-15-00485-CR
                           ———————————
                  CHRISTIAN AVERY NORRIS, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                  On Appeal from the 230th District Court
                           Harris County, Texas
                 Trial Court Case Nos. 1432555 and 1432805


                         MEMORANDUM OPINION

      Christian Norris pled guilty to violating a protective order and assault on a

family member, second offense, without an agreed recommendation for

punishment from the State. Following a presentence investigation (PSI) hearing,
the trial court assessed his punishment at four years’ imprisonment. See TEX.

PENAL CODE ANN. §§ 22.01(b)(2)(A), 25.07 (West 2011 & Supp. 2015). He

appeals his conviction, contending that his trial counsel was ineffective.      We

affirm.

                                 BACKGROUND

      In 2012, Christian Norris pled guilty to assaulting Joriana Prespentt, the

mother of his child, with whom he had an intermittent romantic relationship. The

court issued a protective order prohibiting Norris from contacting, harassing,

threatening, or assaulting Prespentt for two years.

      In 2014, before the protective order expired, Prespentt invited Norris to

spend the night with her and their daughter. Early in the morning, upon finding

text messages and pictures from another man on Prespentt’s phone, Norris got

angry. According to Prespentt, he questioned her about the messages. When she

ignored him, he began yelling at her, pushing her on the bed and squeezing her

arms. Norris then smashed Prespentt’s phone. After Prespentt asked Norris to

leave, Norris picked up their daughter, telling Prespentt that he was taking their

daughter away. A struggle ensued, in which Norris tried to leave with the girl and

Prespentt tried to stop him. In this struggle, Norris pushed Prespentt into a toilet

and again into the stairway banister, breaking one of its supports. Over Prespentt’s

resistance, Norris put their daughter in his car and drove away.



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         In his account, Norris conceded that he had gotten into an argument with

Prespentt over the text messages and pictures that she had received. He claimed

that when Prespentt tried to stop him from leaving with their daughter, he grabbed

Prespentt’s hands and forced her to the bed. Norris explained that when he went to

retrieve his bag as he left, Prespentt fell and dropped her phone in the toilet.

         Norris was charged with assault on a family member, second offense, and

violating a protective order.      Declining a plea bargain offer of four years’

imprisonment, Norris pled guilty without a recommendation on punishment by the

State.     A presentence investigation report was prepared, which contained

Prespentt’s and Norris’s respective accounts, Norris’s social history, and character

reference letters in support of Norris. The trial court conducted a punishment

hearing, in which Prespentt and Norris testified. After reviewing the report and

hearing the parties’ arguments, the trial court assessed Norris’s punishment at four

years’ imprisonment.

                                    DISCUSSION

         To prevail on a claim of ineffective assistance of counsel, the defendant

must show that (1) his counsel’s performance was deficient and (2) a reasonable

probability exists that the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2065 (1984);

Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005). A defendant



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has the burden to establish both prongs by a preponderance of the evidence; failure

to make either showing defeats his ineffectiveness claim. Mitchell v. State, 68

S.W.3d 640, 642 (Tex. Crim. App. 2002). We apply a strong presumption that

counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999).   We presume trial counsel’s actions were reasonably professional and

motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.

Crim. App. 1994); Johnson v. State, 176 S.W.3d 74, 78 (Tex. App.—Houston [1st

Dist.] 2004, pet. ref’d). Furthermore, a claim of ineffective assistance must be

firmly supported in the record. Thompson, 9 S.W.3d at 813. Where the record

does not offer an explanation for trial counsel’s actions, we must presume that

counsel made all significant decisions in the exercise of reasonable professional

judgment. Jackson, 877 S.W.2d at 771; Broussard v. State, 68 S.W.3d 197, 199

(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

      Norris contends that his trial counsel did not (1) introduce mitigating

evidence, (2) introduce evidence of his probation eligibility, or (3) argue that

Norris should be sentenced to probation, and that in failing to do so, his trial

counsel was ineffective.

      1. Failure to Introduce Mitigating Evidence

      Norris complains that his trial counsel should have presented mitigating

evidence apart from Norris’s own testimony at his punishment hearing. Norris



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claims that his counsel failed to introduce any evidence that could counteract the

State’s evidence of his bad character.          He asserts that there was mitigating

evidence available, citing mitigating evidence in the clerk’s record and noting

testimony in the record indicating that his mother was present and could have

testified.

       Usually, the record on direct appeal will not be sufficient to support an

ineffective assistance claim. See Thompson, 9 S.W.3d 808, 814–15 (citing Jackson

v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998)) (“In the majority of

instances, the record on direct appeal is simply undeveloped and cannot adequately

reflect the failings of trial counsel.”).       In the context of allegations that the

defendant’s trial counsel failed to call certain witnesses, this is because the record

does not show what witnesses trial counsel could have called and how their

testimony would have benefitted the defendant’s case. Ex parte McFarland, 163

S.W.3d 742, 758 (Tex. Crim. App. 2005); Brooks v. State, 357 S.W.3d 777, 791–

92 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).

       In Jagaroo v. State, our sister court was presented with a similar claim that

Jagaroo’s counsel was ineffective for failing to present mitigation evidence at

Jagaroo’s punishment hearing. 180 S.W.3d 793, 799–800 (Tex. App.—Houston

[14th Dist.] 2005, pet. ref’d). The court noted that positive reference letters were

attached to the defendant’s presentence investigation report, which was admitted



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into evidence. Id. Noting that Jagaroo had not filed a motion for new trial or

pointed to any mitigating evidence beyond that presented to the trial court, the

appellate court held that Jagaroo had failed to show that his counsel’s performance

was deficient. Id.

      As in Jagaroo, the trial court in this case had mitigating evidence before it in

the form of character reference letters, vitiating Norris’s complaint that his counsel

completely failed to present evidence in mitigation. See id. Norris also has failed

to show the substance of the mitigating evidence his trial counsel should have

presented and how it could have benefitted him. See id. To prove that trial

counsel erred by failing to call certain witnesses, the defendant must show what

witnesses he would have called and how their testimony would have benefitted

him. McFarland, 163 S.W.3d at 758; Brooks, 357 S.W.3d at 79. Norris identifies

no witnesses who could have testified in his defense, apart from his mother, and

the record is silent as to what his mother would have said. Thus, Norris cannot

show that his trial counsel was ineffective. See id.; McFarland, 163 S.W.3d at

758; Brooks, 357 S.W.3d at 792.

      2. Failure to Prove Probation Eligibility

      Norris further complains that his trial counsel should have presented

evidence that he was eligible for probation at his punishment hearing. Norris cites

Ware v. State, in which the Waco Court of Appeals held that the defendant’s trial



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counsel was ineffective for failing to prove his probation eligibility. 875 S.W.2d

432, 438 (Tex. App.—Waco 1994, pet. ref’d). In Ware, however, a jury assessed

punishment. Id. at 433. A jury may only assess probation if it finds that the

defendant has not previously been convicted of a felony. TEX. CODE CRIM. PROC.

ANN. art. 42.12 § 4(e) (West 2007 & Supp. 2015). A defendant who elects to be

sentenced by the trial judge, as Norris did, may be eligible for probation even if he

has been previously convicted of a felony. Id. § 3. Thus, because Norris was

eligible for probation and did not have to prove that he had not been convicted of a

felony to be eligible for probation, his counsel was not ineffective for failing to

make such proof. Id.

      3. Failure to Argue for Probation or Deferred Adjudication

      Finally, Norris contends that his counsel was ineffective because he argued

as follows:

              I’m going to suggest to the Court that some time in jail is
              necessary for Mr. Norris in order to—for the Court to
              impress on him the fact that when this Court tells you
              something, it means it. And I’m not talking about a short
              term of county jail.
              I’m going to ask the Court, however, to grant him
              deferred adjudication after he’s spent some time in jail
              learning that he better abide by what this Court says.

Norris interprets this as a request for a lengthy prison sentence instead of

probation or deferred adjudication. He contends that because his trial counsel did


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not argue that Norris should be sentenced to probation or deferred adjudication, he

was denied effective assistance. Norris’s trial counsel clearly asked, however, that

Norris be given “a significant amount of time in jail as a condition of a deferred

adjudication.”

      Further, Norris’s counsel was not ineffective for conceding that he should

spend some time in jail. This was Norris’s second conviction for assault against a

family member, making a sentence of straight probation or deferred adjudication

less likely. Norris’s counsel may have conceded that Norris, a repeat offender,

should be sentenced to some jail time to establish his credibility in asking the

judge for a light sentence. See Riley v. Cockrell, 339 F.3d 308, 317 (5th Cir.

2003) (quoting Carter v. Johnson, 131 F.3d 452, 466 (5th Cir. 1997)) (“To

establish credibility with the jury, counsel may make a tactical decision to

‘acknowledge the defendant’s culpability and may even concede that the jury

would be justified in imposing the death penalty.’”). Because we presume that

counsel’s actions were motivated by sound trial strategy, we hold that Norris has

failed to meet his burden to demonstrate that his trial counsel was ineffective. See

Jackson, 877 S.W.2d at 771; Johnson, 176 S.W.3d at 78.




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                                   Conclusion

      Finding that Norris failed to satisfy the Strickland burden, we affirm the

judgment of the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Justices Jennings, Keyes, and Bland.

Do not publish. See TEX. R. APP. P. 47.2(b).




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