Affirmed and Memorandum Opinion filed April 19, 2012.




                                               In The

                         Fourteenth Court of Appeals

                                      NO. 14-10-01172-CR


                                DAMION J. POTTS, Appellant

                                                 V.

                              THE STATE OF TEXAS, Appellee


                          On Appeal from the 178th District Court
                                   Harris County, Texas
                              Trial Court Cause No. 1227346


                      MEMORANDUM OPINION

      In a single issue, appellant contends the trial court abused its discretion by denying
his motion for new trial based on alleged ineffective assistance of counsel. We affirm.

                                        I. BACKGROUND

      Appellant was charged with assault of a family member—as defined in the Penal
Code, a person with whom appellant had a “dating relationship.”1 Pursuant to a plea



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          See Tex. Penal Code Ann. § 22.01(b)(2)(A) (West 2011).
bargain, appellant pleaded guilty. The trial court accepted the plea bargain, deferred
adjudication, and placed appellant on probation for three years.

         During November 2010, the State moved to adjudicate appellant’s guilt, alleging
he violated the terms of his probation. The trial court found appellant violated the terms
of his probation. The parties then presented argument regarding punishment. The range
of punishment was two to ten years’ confinement. The trial court sentenced appellant to
three years’ confinement.

         Appellant filed a motion for new trial, alleging ineffective assistance of counsel.
In support, appellant presented his own affidavit as well as affidavits from his mother and
girlfriend (the complainant relative to the assault charge). In their affidavits, appellant’s
mother and girlfriend averred they would have testified at the adjudication-of-guilt
hearing that appellant was a good father, a compassionate, kind-hearted man, and
benefiting from probation. The State presented the affidavit of appellant’s trial counsel,
who posited, “[Appellant] alleges I was ineffective for failing to investigate and call
witnesses for him. This is untrue.” The trial court denied appellant’s motion for new
trial.

                                       II. ANALYSIS

         We review a trial court’s denial of new trial based on ineffective assistance of
counsel for abuse of discretion. Ramirez v. State, 301 S.W.3d 410, 415 (Tex. App.—
Austin 2009, no pet.). To establish ineffective assistance, a defendant must prove by a
preponderance of the evidence that (1) counsel’s representation was deficient because it
fell below the standard of prevailing professional norms and (2) there is a reasonable
probability that, but for counsel’s deficiency, the result would have been different.
Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)).

         According to appellant, counsel was ineffective because he failed to interview
potential character witnesses who would have testified in behalf of appellant during the


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punishment phase. Appellant argues he established there is a reasonable probability that
had his mother and girlfriend testified, the trial court would have sentenced him to two
years’ confinement or continued his probation.

       Even assuming appellant’s counsel performed deficiently by failing to interview
potential character witnesses, we conclude appellant has not established prejudice. The
same trial judge who sentenced appellant to three years’ confinement considered
appellant’s motion for new trial and corresponding affidavits. It was well within the trial
judge’s discretion to determine that the testimony of appellant’s mother and girlfriend
would not have influenced the judge’s “ultimate normative judgment” in assessing
punishment within the statutory range; i.e., the trial judge simply determined the
proffered testimony would not have affected his judgment. See Smith v. State, 286
S.W.3d 333, 344–45 (Tex. Crim. App. 2009); Arriaga v. State, 335 S.W.3d 331, 337
(Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).

       Accordingly, we overrule appellant’s sole issue and affirm the trial court’s
judgment.




                                          /s/       Charles W. Seymore
                                                    Justice


Panel consists of Justices Frost, Seymore, and Jamison.
Do Not Publish — Tex. R. App. P. 47.2(b).




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