AFFIRMED and Opinion Filed February 5, 2018.




                                                In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-00835-CR

                              HENRRY J. ZELAYA, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 1
                                   Dallas County, Texas
                           Trial Court Cause No. F-16-53462-H

                             MEMORANDUM OPINION
                           Before Justices Lang, Brown, and Whitehill
                                    Opinion by Justice Lang
       Henrry J. Zelaya appeals the trial court’s final judgment convicting him of indecency with

a child. The trial court found Zelaya guilty and assessed his punishment at two years of

imprisonment. In one issue on appeal, Zelaya argues he received ineffective assistance of trial

counsel. We conclude that Zelaya has not shown he received ineffective assistance of trial counsel.

The trial court’s final judgment is affirmed.

                                 I. PROCEDURAL CONTEXT

       Zelaya was indicted for indecency of a child. See TEX. PENAL CODE ANN. § 21.11 (West

Supp. 2017). Before trial, Zelaya waived his right to a jury and pleaded no contest. The case was

tried to the bench. After both the State and Zelaya presented their evidence, Zelaya changed his

plea to “not guilty.” Before hearing argument on the issue of guilt or innocence, the trial court
asked defense counsel if his client wanted a presentence report and defense counsel responded

“No.” The trial court found Zelaya guilty.

       No evidence was presented during the hearing on punishment. The State deferred to the

trial court and Zelaya’s counsel argued only the following:

       I’d ask for the minimum time on this, Your Honor. He’s already served out almost
       a year and no record. He’s been a hard worker here in the United States. He’s from
       Honduras, sixth grade education. I just ask that you give him the absolute
       minimum.

The trial court assessed Zelaya’s punishment at two years of imprisonment, the minimum sentence.

                      II. INEFFECTIVE ASSISTANCE OF COUNSEL

       In his sole issue on appeal, Zelaya argues he received ineffective assistance of trial counsel.

He claims that his trial counsel waived and forfeited his right to the preparation of a presentence

report. Zelaya contends that this deprived him of the right to present mitigating evidence at his

hearing on punishment, which might have led to a sentence of community supervision. The State

responds that the record is insufficient to establish whether trial counsel’s waiver of the

presentence report was deficient conduct or established prejudicial harm.

                                        A. Applicable Law

       The Sixth Amendment guarantees a criminal defendant the effective assistance of counsel.

See U.S. CONST. amend. VI; Hinton v. Alabama, 134 S. Ct. 1081, 1087–88 (2014) (per curiam);

Strickland v. Washington, 466 U.S. 668, 685–87 (1984); Ex parte Scott, No. WR-83,185-07, 2017

WL 4675387, at *4 (Tex. Crim. App. Oct. 18, 2017). To prevail on an ineffective-assistance-of-

counsel claim, a defendant applicant must prove that: (1) his counsel’s performance was deficient;

and (2) he was prejudiced by the deficiency. See Hinton, 134 S. Ct. at 1088; Strickland, 466 U.S.

at 687; Ex parte Scott, 2017 WL 4675387, at *4; Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim.

App. 2013).



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       The first part of Strickland test is linked to the practice and expectations of the legal

community and the proper measure of attorney performance is reasonableness under prevailing

professional norms. See Hinton, 134 S. Ct. at 1088; Strickland, 466 U.S. at 687; Ex parte Scott,

2017 WL 4675387, at *4. To defeat the strong presumption of reasonable professional assistance,

an appellant must prove by a preponderance of the evidence that counsel’s representation was

unreasonable according to prevailing professional norms and that any alleged inaction was not

sound legal strategy. See Kimmelman v. Morrison, 477 U.S. 365, 384 (1986); Ex parte Scott, 2017

WL 4675387, at *4; Andrews v. State, 159 S.W.3d 98, 102–03 (Tex. Crim. App. 2005).

       To satisfy the second part of the test, appellant must show a reasonable probability that,

absent counsel’s errors, the result of the proceeding would have been different. See Hinton, 134

S. Ct. at 1089; Strickland, 466 U.S. at 687, 694; Nava, 415 S.W.3d at 308. A reasonable probability

is a probability sufficient to undermine confidence in the outcome of the trial. See Strickland, 466

U.S. at 694; Villa, 417 S.W.3d at 463; Nava, 415 S.W.3d at 308. To prove prejudice in the context

of the punishment phase, a defendant must prove that a reasonable probability exists that, but for

counsel’s deficient conduct, a lesser punishment would have been assessed. Ex parte Scott, 2017

WL 4675387, at *5.

       In order to establish ineffective assistance of counsel under the Sixth Amendment, a

defendant must show both deficient performance and prejudice. See Strickland, 466 U.S. at 687.

A defendant’s failure to satisfy either part of the test defeats the ineffective assistance claim. See

Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010); Thompson v. State, 9 S.W.3d 808,

813 (Tex. Crim. App. 1999). As a result, it is unnecessary to evaluate the performance part of the

Strickland test in a case where the appellate court concludes that the defendant failed to satisfy the

prejudice part of the test. See Strickland, 466 U.S. at 687 (“[T]here is no reason for a court deciding




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an ineffective assistance claim . . . even to address both components of the inquiry if the defendant

makes an insufficient showing as to one.”).

                               B. Application of the Law to the Facts

       Even if we assume that trial counsel’s performance fell below an objective standard of

reasonableness, Zelaya had to prove by a preponderance of the evidence that his counsel’s deficient

performance prejudiced him. In his brief, Zelaya generally acknowledges his burden to prove

prejudice, arguing “The waiver of [his] right to the preparation of appropriate pre-sentence reports

was clearly detrimental to him.” Zelaya also claims that “The pre-sentence reports would have

provided a clearer picture of [his] criminal and social history. The reports would have provided

information about the appropriateness of treatment that would have assured the safety of the

community if [he] was given adequate treatment and specialized supervision.” However, Zelaya

does not point to any objective facts in the record that would probably have led to a less severe

punishment, nor does he explain why the punishment would have been different. As a result,

Zelaya has failed to meet his burden under the second part of Strickland. See e.g., Wilson v. State,

05-10-00326-CR, 2011 WL 2860002, at *2 (Tex. App.—Dallas July 20, 2011, pet. ref’d) (not

designated for publication) (although he argued counsel’s argument was likely to affect jury and

punishment assessed, he was clearly prejudiced by counsel’s conduct, and there clearly exists

reasonable probability sufficient to undermine confidence in outcome, defendant failed to meet

burden under second part of Strickland because he does not point to any objective facts in record

that probably would have led to not-guilty verdict or lesser sentence nor does he explain how or

why verdict or punishment would have been different).

       Because Zelaya has failed to meet the second part of Strickland, we are required to resolve

his sole issue against him and do not address the requirements of the first part of Strickland. See

Strickland, 466 U.S. at 687.


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                                      III. CONCLUSION

       Zelaya has not shown he received ineffective assistance of trial counsel.

       The trial court’s final judgment is affirmed.




                                                  /Douglas S. Lang/
                                                  DOUGLAS S. LANG
                                                  JUSTICE


Do Not Publish
TEX. R. APP. P. 47
170835F.U05




                                               –5–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 HENRRY J. ZELAYA, Appellant                       On Appeal from the Criminal District Court
                                                   No. 1, Dallas County, Texas
 No. 05-17-00835-CR         V.                     Trial Court Cause No. F-16-53462-H.
                                                   Opinion delivered by Justice Lang. Justices
 THE STATE OF TEXAS, Appellee                      Brown and Whitehill participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 5th day of February, 2018.




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