Affirmed and Opinion filed August 18, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00451-CR

                       JOSHUA BULLOCK, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 230th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1399389

                                OPINION
      Appellant Joshua Bullock appeals from his conviction for aggravated
robbery. After appellant pleaded guilty and elected to have the trial judge assess
punishment, the trial court held a punishment hearing and sentenced him to 15
years’ imprisonment. In a single issue on appeal, appellant contends that he
received ineffective assistance of counsel during the punishment phase.
                                    Background

      Appellant was charged with aggravated robbery after he and another
individual stole a woman’s mobile phone at gunpoint. Appellant pleaded guilty to
the aggravated robbery charge without an agreed recommendation on punishment.
A presentence investigation report was prepared and admitted into evidence at the
punishment hearing.

      Also during the punishment hearing, appellant’s trial counsel called
appellant’s mother to testify on his behalf. His mother testified that she had
observed a change in appellant’s behavior since this incident and that appellant had
learned that there are consequences for his actions. She also testified that she
would be able to help appellant abide by the terms and conditions if he were given
deferred adjudication. On cross-examination, the State elicited testimony that
appellant was involved repeatedly in unlawful activities while these charges were
pending. These activities included theft of his father’s vehicle, fighting with his
girlfriend, and possession of marijuana. Appellant’s mother also testified that, on
another occasion, she and appellant were charged together with possession of
marijuana, possession of a handgun, and tampering with evidence.

      Trial counsel urged the court to grant appellant probation, conditioned on
completing a residential program and counseling, alleging that appellant had
suffered a “deficit in terms of parenting ability” and needed therapy. Trial counsel
further stated that “some of us start out with more cards in our hands than others.
And as you can see from the testimony concerning [appellant’s] childhood, that the
cards [appellant] began with were not high ones.” Trial counsel also advised the
trial court that prison would be of no benefit to appellant or society because it
would only train him to become a better criminal.

      The trial court sentenced appellant to 15 years in the Institutional Division of
                                          2
the Texas Department of Corrections, noting that appellant, who also testified, did
“not give [the trial court] one reason . . . to believe that [appellant] at any point
[would] gain the maturity in order to be on [] probation.” The trial court further
explained that, through no fault of trial counsel, appellant had done nothing to
ensure that he could be trusted on probation.1              Indeed, the court specifically
highlighted appellant’s several arrests while he was out on bond.

                                         Discussion

       In one issue, appellant contends he received ineffective assistance of counsel
during the punishment hearing. The United States Constitution guarantees the right
to reasonably effective assistance of counsel in criminal prosecutions. U.S. Const.
amend. VI; McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). To
demonstrate ineffective assistance of counsel, an appellant must first show that
counsel’s performance was deficient, i.e., that counsel’s assistance fell below an
objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999); see also Hernandez v. State, 988 S.W.2d 770, 774 (Tex. Crim.
App. 1999) (holding that the standard for reviewing claims of ineffective
assistance of counsel during the punishment and guilt phases is the same). Second,
a defendant must show this deficiency was so prejudicial that it rendered the trial
unfair, i.e., there is a reasonable probability that, but for counsel’s damaging
conduct, the outcome of the trial would have been different. Thompson, 9 S.W.3d
at 812.

       In reviewing an ineffective assistance claim, appellant bears the burden of
proving by a preponderance of the evidence that counsel was ineffective.
Thompson, 9 S.W.3d at 813. There is a strong presumption that “counsel’s conduct

       1
         The trial judge stated: “And don’t you blame your lawyer for this. He’s done everything
that he can do—possibly do for you.”

                                               3
fell within the wide range of reasonable professional assistance.” Strickland v.
Washington, 466 U.S. 668, 689 (1984). Any allegation of ineffectiveness must be
firmly founded on the record, and the record must affirmatively demonstrate the
alleged ineffectiveness. Thompson, 9 S.W.3d at 813. This is a difficult hurdle to
overcome, for “the record must demonstrate that counsel’s performance fell below
an objective standard of reasonableness as a matter of law, and that no reasonable
trial strategy could justify trial counsel’s acts or omissions, regardless of his or her
subjective reasoning.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App.
2011). When the record is silent, as it is here because appellant did not file a
motion for new trial, an appellate court should not engage in speculation regarding
whether counsel’s performance was deficient with the benefit of hindsight. See id.
at 142.

      Appellant complains that calling his mother as the only defense witness
during the punishment hearing constituted ineffective assistance of counsel.
Specifically, he contends that her testimony was so damaging to his case that there
could be “no scenario under which the actions of counsel . . . could be considered
‘sound trial strategy.’” He insists that counsel’s placing his mother on the stand
reflected either a lack of adequate preparation for the case or a reckless disregard
for the outcome of the hearing. Appellant points to his mother’s statements
regarding his unlawful conduct that resulted in police intervention. All of the
alleged conduct, which included theft of a vehicle, a domestic dispute, two drug
charges, unlawful possession of a firearm, and evidence tampering, occurred while
appellant’s aggravated robbery charges were pending. The record is silent,
however, as to trial counsel’s strategy in calling this witness, and appellant does
not indicate how the record supports his arguments.2

      2
          The record does not indicate that trial counsel failed to investigate potential mitigating
                                                 4
       It is possible that counsel determined that having appellant’s mother testify
was overall a positive strategy, even though some negative testimony might come
out as a result. To begin with, it must be noted that evidence of appellant’s other
arrests while charges were pending was admitted as part of the presentence
investigation report. Thus, trial counsel presumably would have known that the
trial court would be considering this evidence regardless of any witness testimony.

       Moreover, appellant’s mother testified that she had seen a positive change in
appellant’s behavior since he was charged and that he had learned he was
responsible for his own actions. She also testified that she would help appellant
abide by the terms and conditions of deferred adjudication. Given the positive
nature of this testimony and the fact the negative aspects of the testimony were
already before the court, the record does not affirmatively demonstrate trial
counsel’s ineffectiveness. See Thompson, 9 S.W.3d at 813.

       The record also supports the possibility that the mother’s shortcomings as a
parental figure were intended to provide trial counsel an argument for granting
leniency to appellant. During closing argument, trial counsel urged the court to
order probation and counseling, noting that appellant suffered a “deficit in terms of
parenting ability.” Counsel also stated that “some of us start out with more cards in
our hands than others. And as you can see from the testimony concerning
[appellant’s] childhood, that the cards [appellant] began with were not high ones.”

evidence or that counsel was aware of any additional mitigating evidence or witnesses who could
have offered more positive testimony on appellant’s behalf. Therefore, we may not consider
whether counsel had other strategies at his disposal. Cf. Wade v. State, 164 S.W.3d 788, 796
(Tex. App.—Houston [14th Dist.] 2005, no pet.) (“A claim of ineffective assistance of counsel
based on counsel’s failure to call witnesses fails in the absence of a showing that such witnesses
were available to testify and that the defendant would have benefitted from their testimony.”)
(citing Wilkerson v. State, 726 S.W.2d 542, 551 (Tex. Crim. App. 1986), and King v. State, 649
S.W.2d 42, 44 (Tex. Crim. App. 1983)). Instead, our analysis is constrained to the issue of
whether the calling of this witness demonstrates counsel’s unreasonable failure to provide a fair
defense.

                                                5
These statements appear to have been part of an attempt to convince the trial court
that appellant deserved a chance to correct his behavior as opposed to being
institutionalized. The choice to call appellant’s mother as a witness may have been
part of this trial strategy. See West v. State, No. 14-13-00896-CR, 2014 WL
6601216, at *6-7 (Tex. App.—Houston [14th Dist.] Nov. 20, 2014, no pet.)
(holding that appellant did not overcome presumption of reasonable assistance of
counsel where, in the punishment phase, trial counsel only called appellant to
testify and appellant was forced to admit on cross examination his negative attitude
toward law enforcement, failure to hold a job, and assault of another individual
with a hammer).

      Because appellant failed to demonstrate that his counsel’s performance fell
below an objective standard of reasonableness, we need not consider whether his
case was prejudiced by counsel’s performance. See Thompson, 9 S.W.3d at 813
(“Failure to make the required showing of either deficient performance or
sufficient prejudice defeats the ineffectiveness claim.”). We overrule appellant’s
sole issue.

      We affirm the trial court’s judgment.




                                      /s/       Martha Hill Jamison
                                                Justice


Panel consists of Chief Justice Frost and Justices Jamison and Busby.
Publish — TEX. R. APP. P. 47.2(b).




                                            6
