                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00188-CR



           DAVID CARL HARVEY, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



      On Appeal from the 8th Judicial District Court
                Hopkins County, Texas
               Trial Court No. 1826423




      Before Morriss, C.J., Burgess and Stevens, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                 MEMORANDUM OPINION
        After David Carl Harvey was adjudicated guilty of manufacture/delivery of a controlled

substance, he was sentenced to seventy-five years’ imprisonment. 1 On appeal, Harvey claims that

his trial counsel was constitutionally ineffective for failing to present mitigating evidence or to call

any character witnesses. He makes the bare assertion on appeal that Harvey’s trial counsel “could

have called” family or friends to speak well of Harvey, his work history, and his family ties. We

affirm the judgment of the trial court, because Harvey has not established a valid claim of

ineffective assistance of counsel.

        To support an ineffective-assistance claim, “the record must affirmatively demonstrate”

the meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

To show ineffective assistance of counsel, Harvey must establish (1) deficient performance by his

attorney and (2) resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984);

Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). For deficient performance to have

occurred, counsel’s performance must have fallen below an objective standard of reasonableness

based on prevailing professional norms. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim.

App. 2006). To show prejudice, the claimant must establish “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. There has been prejudice as to punishment if there is a reasonable

probability that the punishment assessed “would have been less severe in the absence of counsel’s



1
 See TEX. HEALTH & SAFETY CODE ANN. § 481.112(c) (West 2017). Harvey was sentenced under the habitual
offender statute. See TEX. PENAL CODE ANN. § 12.42 (West Supp. 2018).

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deficient performance.” Milburn v. State, 15 S.W.3d 267, 270 (Tex. App.—Houston [14th Dist.]

2000, pet. ref’d). To be “reasonable” the probability of a different result must undermine

confidence in the case’s outcome. Strickland, 466 U.S. at 694. Failure on either of the required

showings dooms the claim of ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex.

Crim. App. 2003).

       In addressing a claim of ineffective assistance, we strongly presume that counsel’s conduct

fell within the wide range of reasonable professional assistance and was “sound trial strategy.”

Strickland, 466 U.S. at 689. We are highly deferential to counsel in our review, and we are not to

speculate on counsel’s trial strategy. See Bone v. State, 77 S.W.3d 828, 833, 835 (Tex. Crim. App.

2002). An ineffective-assistance claim must rely on an appellate record demonstrating that trial

counsel’s performance was not based on sound strategy. Mallett v. State, 65 S.W.3d 59, 63 (Tex.

Crim. App. 2001). A record that is silent as to counsel’s strategy will leave in place the

presumption that counsel was effective. Rylander, 101 S.W.3d at 110–11. Usually, the record on

direct appeal is not fully developed to properly evaluate a claim of ineffective assistance.

Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012); Thompson, 9 S.W.3d at 813–

14. The record on direct appeal seldom reflects the motives behind trial counsel’s actions. Mallett,

65 S.W.3d at 63. Trial counsel should ordinarily be given a chance to explain his or her actions

before an appellate court finds that counsel was ineffective. Menefield, 363 S.W.3d at 593; see

Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836.

       “The decision whether to present witnesses is largely a matter of trial strategy.” Lopez,

462 S.W.3d 180, 185 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (quoting Lair v. State, 265

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S.W.3d 580, 594 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d)). An attorney’s decision not

to present any particular witness at the punishment stage “may be a strategically sound decision if

the attorney bases it on a determination that the testimony . . . may be harmful, rather than helpful

to the defendant.” Shanklin v. State, 190 S.W.3d 154, 164 (Tex. App.—Houston [1st Dist.] 2005),

pet. dism’d, improvidently granted, 211 S.W.3d 315 (Tex. Crim. App. 2007). A defendant

complaining about trial counsel’s failure to call witnesses “must show the witnesses were available

and that he would have benefitted from their testimony.” Cantu v. State, 993 S.W.2d 712, 719

(Tex. App.—San Antonio 1999, pet. ref’d) (citing King v. State, 649 S.W.2d 42, 44 (Tex. Crim.

App. 1983)); see Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007) (per curiam).

       During the punishment phase in this case, Harvey’s trial counsel called one witness, Carol

Gunderson, Harvey’s most recent community supervision officer, in an effort to mitigate the

State’s punishment evidence.      Gunderson’s direct testimony does not appear to have been

particularly persuasive on Harvey’s behalf. Plus, on cross-examination, the State was able to

establish that Harvey had problems with drug use, drug sales and deliveries, flight from police,

repeated thefts, lying to police, assault, trespassing, forgeries, and criminal mischief. Other than

appellate counsel’s bare assertion in Harvey’s brief to this Court, the record contains no

information on other witnesses that could have been called, what they would have said, and what

risks would have been run had they been called. See Ramirez, 280 S.W.3d at 853; Cantu, 993

S.W.2d at 719. And it is entirely possible that any other such witnesses could have been cross-

examined by the State to much the same effect as the cross-examination of Gunderson.




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       Harvey cites the Fourteenth Court of Appeals’ decision in Milburn as support for his

contention that his trial counsel rendered ineffective assistance by failing to call mitigation or

character witnesses during the punishment phase. See Milburn, 15 S.W.3d 267. In Milburn, the

record, through stipulations and testimony at the hearing on Milburn’s motion for new trial,

contains the substance of the testimony of numerous individuals supporting Milburn’s claim of

ineffective assistance of counsel. Id. at 269–71. Here, the record is silent.

       Harvey has not established that his trial counsel rendered ineffective assistance by failing

to call more than one witness during the punishment phase of his trial. See Robinson v. State, 514

S.W.3d 816, 822–25 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).

       We affirm the judgment of the trial court.




                                              Josh R. Morriss, III
                                              Chief Justice

Date Submitted:        January 17, 2019
Date Decided:          January 18, 2019

Do Not Publish




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