                                   NO. 07-03-0030-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                         PANEL C

                                     JULY 15, 2003

                         ______________________________


                          ANTONIO D. SCOTT, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

             FROM THE 260TH DISTRICT COURT OF ORANGE COUNTY;

              NO. D990468-R; HONORABLE BUDDIE J. HAHN, JUDGE

                         _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.


                               MEMORANDUM OPINION


      Appellant Antonio D. Scott appeals from revocation of his probation and sentence

of six years incarceration. We affirm.


       In August, 1999, appellant Antonio D. Scott pled guilty to aggravated assault. In

October, 1999, he was sentenced to 10 years incarceration, probated for 10 years. In May,

2002, the State filed a motion to revoke probation. In September, 2002, appellant pled true
to all allegations in the State’s motion. The hearing was recessed until October, 2002, at

which time the trial court took evidence as to punishment. Appellant was the only witness

to testify. The trial court sentenced appellant to six years incarceration.


       Appellant appeals via one issue. He urges that he did not receive effective

assistance of counsel to which he was entitled under the Sixth Amendment to the United

States Constitution at his October, 2002, punishment hearing. The allegation is based

upon his claim that his counsel did not properly investigate his case to discover and

present mitigation evidence at the hearing.


       The State urges that the record does not reflect appellant’s counsel performed in

any manner but as effective counsel. Because the burden is on appellant to show in the

record where his counsel was ineffective, and appellant has not done so, the State urges

that we affirm the judgment.


       In determining whether counsel’s representation was so inadequate as to violate a

defendant’s Sixth Amendment right to counsel, Texas courts adhere to the two-pronged

test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674(1984). See Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). There is

a strong presumption that counsel’s conduct fell within the wide range of reasonable

professional assistance. See Strickland, 466 U.S. at 690 104 S.Ct. at 2065. The burden

is on appellant to prove by a preponderance of the evidence that counsel was ineffective.

See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). The defendant must

first prove that counsel’s performance was deficient, i.e., that counsel’s assistance fell


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below an objective standard of reasonableness. Id. If appellant has demonstrated deficient

assistance of counsel, it is then necessary that appellant affirmatively prove prejudice as

a result of the deficient assistance. Id. In proving prejudice, appellant must prove a

reasonable probability that but for counsel’s errors, the result of the proceeding would have

been different. See Hernandez, 726 S.W.2d at 56-57.


       Any allegation of ineffective assistance of counsel must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness.

McFarland, 928 S.W.2d at 500. Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim. Id.


       Just as a criminal defendant is entitled to an opportunity to explain himself and

present evidence on his behalf, defense counsel should also ordinarily be accorded an

opportunity to explain his or her actions before being labeled as unprofessional,

incompetent or ineffective. A record without (1) objective facts to support a conclusion of

lack of confidence in the results of the proceeding, or (2) a specific demonstration of

prejudice will not support a finding of ineffective assistance of counsel. See Bone v. State,

77 S.W.3d 828, 836-37 (Tex.Crim.App. 2002). We are not to reverse for counsel’s failure

to investigate unless the consequence of the failure to investigate “is that the only viable

defense available to the accused is not advanced . . . [and] there is a reasonable

probability that, but for counsel’s [failure to advance the defense], the result of the

proceeding would have been different.” See McFarland, 928 S.W.2d at 501.




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       Appellant points to no record evidence to support his claim of ineffectiveness. He

offers no proof that counsel failed to investigate. He does not claim evidence exists which

was available to discover, even if we were to speculate that counsel did not investigate.

He does not point out how some such evidence, even if it existed, would have probably

caused a different result.


       We will not speculate that counsel failed to investigate. Nor will we speculate that

evidence existed which would have been relevant to appellant’s punishment hearing. See

Bone, 77 S.W.3d at 836-37.


       Appellant has failed to make the required showing of either deficient performance

or sufficient prejudice. See McFarland, 928 S.W.2d at 500.


       Appellant’s sole issue is overruled. The judgment is affirmed.




                                                        Phil Johnson
                                                        Chief Justice



Do not publish.




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