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


                  No. 06-15-00143-CR



           DELBERT SISEMORE, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 102nd District Court
                Bowie County, Texas
            Trial Court No. 14F0490-102




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                             MEMORANDUM OPINION
            In September 2014, Delbert Sisemore pled not guilty to charges of possession of a

controlled substance of less than one gram, burglary of a habitation, and aggravated robbery with

an affirmative finding of a deadly weapon.1 Less than a year later, Sisemore entered guilty pleas

to the charges of possession and burglary of a habitation. Sisemore elected to have a jury decide

his fate as to the aggravated robbery charge and to also have a jury determine his punishment for

the possession of a controlled substance and burglary of a habitation convictions. Pursuant to his

requests, a jury was convened and Sisemore was found guilty of aggravated robbery. The jury

also assessed his punishment at (1) two years’ confinement in a state jail facility for possession of

less than one gram of a controlled substance, (2) ten years’ confinement in prison for burglary of

a habitation, and (3) forty-five years in prison for aggravated robbery. The trial court entered

judgments of conviction and sentences in accord with the jury’s verdicts. Sisemore timely filed

his notice of appeal.2

            In his sole point of error, Sisemore contends he received ineffective assistance of counsel

because his trial counsel failed to offer any evidence in his defense during the punishment phase

of the proceedings. Sisemore asks this Court to reverse the trial court’s imposition of his forty-

five-year sentence for aggravated robbery and to remand his case for a new trial on punishment.


1
    The indictment against Sisemore alleged that

            on or about May 24, 2014, [Sisemore] did then and there, while in the course of committing theft of
            property and with intent to obtain or maintain control of said property, intentionally or knowingly
            threaten or place Jeanna McDonald in fear of imminent bodily injury or death, and [Sisemore] did
            then and there use or exhibit a deadly weapon, to wit: a firearm.
2
    Sisemore only appeals the trial court’s judgment of conviction as to aggravated robbery.

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Because Sisemore is unable to show that counsel’s ineffectiveness, if any, resulted in a reasonable

probability that the result of the proceeding would have been different, we overrule his sole point

of error and affirm the trial court’s judgment.

I.       Background3

         During the punishment phase of Sisemore’s trial, the State called multiple witnesses,

including a law enforcement officer who testified that Sisemore had been previously convicted of

multiple misdemeanor charges and at least one felony and that he had also been previously placed

on community supervision but failed to successfully complete it. Another officer testified that

Sisemore had been involved with the manufacture of methamphetamine. In addition, a community

supervision officer testified that while on community supervision, Sisemore tested positive for the

use of methamphetamine, at which time the State filed a motion to revoke.

         In contrast to the State’s presentation of punishment evidence, Sisemore’s defense counsel

waived his opening and closing arguments and refrained from presenting any testimony or

evidence in his defense, including cross-examining the State’s witnesses. According to the record,

Sisemore’s trial counsel proceeded in this manner based, at least in part, on Sisemore’s

instructions. Outside the presence of the jury, defense counsel called Sisemore to the stand to

testify in regard to his wishes:

                [Counsel for Appellant]: Delbert, prior to the beginning of the punishment
         phase, was it not your communication to me that you did not want me to cross-
         examine any witnesses, present any witnesses on your behalf, or make any
         arguments to the jury?

3
 Because Sisemore’s argument on appeal is based solely on the issue of his trial counsel’s ineffectiveness during the
punishment phase of the proceedings, we will dispense with a lengthy recitation of the factual background making up
the allegations contained in the indictment against him.
                                                         3
                  [Appellant]: Correct.

                  [Counsel for Appellant]: And I informed your family and informed you that
           they wanted to testify, but it was your decision that no testimony be presented or
           argument made?

                  [Appellant]: Correct.

                  [Counsel for Appellant]: That’s all I have, Your Honor.

Despite his instructions, Sisemore maintains on appeal that he received ineffective assistance of

counsel because his counsel complied with his request. We disagree.

II.        Ineffective Assistance of Counsel

           The right to counsel does not mean the right to errorless counsel. Robertson v. State, 187

S.W.3d 475, 483 (Tex. Crim. App. 2006). “Ineffective assistance of counsel claims are evaluated

under the two-part test formulated in Strickland, requiring a showing of both deficient performance

and prejudice.” Johnson v. State, 432 S.W.3d 552, 555 (Tex. App.—Texarkana 2014, pet. ref’d)

(citing Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812

(Tex. Crim. App. 1999); Fox v. State, 175 S.W.3d 475, 485 (Tex. App.—Texarkana 2005, pet.

ref’d)).     “To prevail on his ineffective assistance claims, [Sisemore] must prove by a

preponderance of the evidence that (1) his counsel’s representation fell below an objective standard

of reasonableness and (2) the deficient performance prejudiced the defense.” See id. (citing

Strickland, 466 U.S. at 687; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000)). “Failure

to satisfy either prong of the Strickland test is fatal.” Id. (citing Ex parte Martinez, 195 S.W.3d

713, 730 n.14 (Tex. Crim. App. 2006)). “Thus, we need not examine both Strickland prongs if

one cannot be met.” Id.
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         The prejudice prong requires a showing that, but for counsel’s unprofessional error, there

is a reasonable probability that the result of the proceeding would have been different. Strickland

v. Washington, 466 U.S. 668, 694 (1984). “A reasonable probability” is defined as “a probability

sufficient to undermine confidence in the outcome.” Id. Thus, in order to establish prejudice,

         an applicant must show “that counsel’s errors were so serious as to deprive
         defendant of a fair trial, a trial whose result was reliable.” [Strickland, 466 U.S.] at
         687. It is not sufficient for Applicant to show “that the errors had some conceivable
         effect on the outcome of the proceeding.” Id. at 693. Rather, [he] must show that
         “there is a reasonable probability that, absent the errors, the factfinder would have
         had a reasonable doubt respecting guilt.” Id. at 695.

Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).

III.     Analysis

         Sisemore contends he is not required to make a showing of prejudice because his trial

counsel’s performance amounted to being “totally absent” during a critical stage of the

proceedings. See Goodspeed v. State, 187 S.W.3d 390, 396–97 (Tex. Crim. App. 2005) (Holcomb,

J., dissenting).4 Sisemore maintains that his trial counsel’s failure to present evidence or cross-


4
 Sisemore cites to the dissenting opinion in Goodspeed, which was penned by Judge Holcomb and joined by Judge
Meyers. In that case, after the State conducted its voir dire, trial counsel refrained from asking any questions at all,
but explained to the venirepersons that he had listened to the State for approximately two hours and that the State had
covered everything, including asking any questions that he might have asked. Goodspeed, 187 S.W.3d at 396–97. In
addition, although trial counsel exercised all of Goodspeed’s peremptory challenges, two of those challenges were
used on prospective jurors who had already been excused by the trial court for cause. Id. In his dissenting opinion,
Judge Holcomb emphasized the importance of jury voir dire and “that there could be no sound reason for trial counsel
to entirely waive voir dire.” Id. at 395. Judge Holcomb continued,

         As to the question of prejudice, I do not disagree with the court of appeals resolution, but I would
         not apply the standard harm analysis to the errors made here, because the impact of the error could
         never be adequately shown. . . . The situation here is different and is analogous to not having an
         attorney in the courtroom at all.

Id. at 386 (citations omitted).
          In its majority opinion, however, the court stated, “[W]e cannot conclude that the failure to ask any questions
in voir dire constitutes conduct so outrageous that no competent attorney would have engaged in it.” Id. at 392
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examine the State’s witnesses resulted “in the deprivation of an entire judicial proceeding.” See

Ex parte Crow, 180 S.W.3d 135, 137–38 (Tex. Crim. App. 2005). Sisemore contends that the

error in this case “defies a harm analysis because subjecting the error to Strickland prejudice would

render meaningless the protections afforded by the right to counsel.” See Goodspeed, 187 S.W.3d

at 396 (citing Penson v. Ohio, 488 U.S. 75, 109 (1988)).

           In support of his position, Sisemore cites Crow. In that case, Crow was charged with the

offense of aggravated robbery, pled not guilty, and subsequently, was found guilty by a jury.

Crow, 180 S.W.3d at 137. He appealed the trial court’s judgment of conviction, was appointed

appellate counsel, challenged the legal and factual sufficiency of the evidence, and alleged a

Batson5 error. The appellate court affirmed the trial court’s judgment, but appellate counsel failed

to inform Crow of the court’s decision. Consequently, Crow did not become aware of the court of

appeal’s decision until after the time in which he could have filed a petition for discretionary

review. Crow then filed a pro se application for a writ of habeas corpus maintaining that he

discovered the appellate court’s opinion after his own inquiry, that he was deprived of his right to

file a petition for discretionary review, and that had one been filed, there was a significant chance

his conviction would have been reversed. In his writ application, Crow did not explain why he

believed his petition for discretionary review would have had merit. The Texas Court of Criminal

Appeals stated,




(majority opinion). The court went on to find that even if trial counsel’s performance was deficient, appellant had not
shown harm. Id. at 394.
5
    Batson v. Kentucky, 476 U.S. 79 (1986).
                                                          6
        But Johnson[6] recognized that Supreme Court precedent treats certain attorney
        errors a little differently under Strickland’s prejudice prong than is ordinarily the
        case. For attorney errors that involve a deprivation amounting to a structural defect,
        the prejudice inquiry is more limited. These errors are rare, but include deficient
        conduct that results in the deprivation of an entire judicial proceeding, such as an
        appeal.

Id. at 137–38 (citations omitted). Sisemore contends that because his trial counsel failed to present

defense witnesses or cross-examine the State’s witnesses, he was “depriv[ed] of an entire judicial

proceeding” and that, therefore, he is relieved of proving he was prejudiced by his counsel’s

performance. See id. We disagree.

        In Crow, appellant had no choice as to whether he would file a petition for discretionary

review because his counsel failed to inform him of the appellate court’s decision to affirm the trial

court’s judgment. He was, in fact, “depriv[ed] of an entire judicial proceeding.” Id. In this case,

Sisemore was given the opportunity to present witnesses and to cross-examine the State’s

witnesses. The record shows that it was Sisemore’s own decision that prevented him from

presenting a defense and not trial counsel’s alleged ineffectiveness. Because of the instructions

Sisemore gave, he cannot now say that he was denied an entire proceeding, nor can he do so based

on his trial counsel’s compliance with his instructions.

        Despite his argument to the contrary, we find that Sisemore is required to show that he was

prejudiced by his trial counsel’s performance at trial. See Strickland, 466 U.S. at 687. Generally,

a failure to call witnesses does not constitute ineffective assistance of counsel without a showing



6
 In Johnson, the Texas Court of Criminal Appeals held that all attorney errors should be viewed through the framework
of a Strickland analysis, except in conflict-of-interest cases and when a defendant is denied the right to counsel
altogether. Johnson v. State, 169 S.W.3d 223, 232 (Tex. Crim. App. 2005). Neither of these circumstances is present
in this case.
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that the witnesses were available to testify and that their testimony would have benefited the

accused. Butler v. State, 716 S.W.2d 48, 55 (Tex. Crim. App. 1986). While the record shows that

Sisemore’s family members were available at trial to testify, it reveals nothing of what their

purported testimony would have been. In short, the record has not been developed to allow this

Court to properly address Sisemore’s claim. There is simply no way for this Court to conclude

that trial counsel’s compliance with Sisemore’s instructions was deficient performance.

        Sisemore has not met his burden of showing that, but for counsel’s alleged ineffective

assistance, there is a reasonable probability that the result of the proceeding would have been

different.

IV.     Conclusion

        We affirm the trial court’s judgment.




                                                Bailey C. Moseley
                                                Justice

Date Submitted:        June 3, 2016
Date Decided:          June 6, 2016

Do Not Publish




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