                                     NO. 07-00-0436-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                           PANEL B

                                 SEPTEMBER 13, 2001
                           ______________________________

                              DANIEL LECORTERA DEAMAT,

                                                          Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                 Appellee
                         _________________________________

              FROM THE 263TH DISTRICT COURT OF HARRIS COUNTY;

                     NO. 835,140; HON. JIM WALLACE, PRESIDING
                         _______________________________

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

       Appellant, Daniel LeCortera Deamat, appeals his conviction for burglary of a

habitation. His sole point of error concerns the effectiveness of his trial counsel. The latter

was supposedly ineffective because he allegedly 1) failed to investigate the “criminal

background” of a key witness and 2) mentioned “extraneous offenses in the presence of the

jury.” We overrule the point and affirm.

                                    Standard of Review
       The standard of review applicable to claims such as that at bar is well-settled and

adequately explained in Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000), cert. denied,

__U.S.__, 121 S.Ct. 2196, 149 L.Ed.2d 1027 (2001) and Thompson v. State, 9 S.W.3d 808

(Tex. Crim. App. 1999). We need not reiterate it.

                                     Application of Standard

       Extraneous Offenses

       We first address the allegation that counsel was ineffective because she mentioned

extraneous offenses. In positing the contention, appellant simply cites excerpts from the

reporter’s record wherein counsel attempted to read from an offense report. Nowhere does

he cite legal authority supporting the contention.1 Nor does he explain how this conduct

fell below an objective standard of reasonableness. Also missing is any attempt to explain

how “the result would have been different” had the supposed error not occurred.2 Rather,

the appellant merely suggests that the action was improper and concludes that “[t]he results

of the proceeding would have been different in the absence of . . . [the] unprofessional

errors.”

       It is clear that the burden to prove a claim of ineffective assistance lies with the

appellant. Thompson v. State, 9 S.W.3d at 812. Similarly undisputed is the duty of an

appellant to posit clear and concise argument and accompany same with citation to the

record and pertinent legal authority. TEX . R. APP . PROC . 38.1(h). It is not enough to merely

           1
          The authority he did cite concerned either the general standard of review applicable to claims of
ineffective assistance or the failure to investigate. None are cited as support for the proposition that the
mere mention of extraneous offenses somehow constitutes unreasonable conduct.
       2
         This is of particular note given the quantum of evidence illustrating appellant’s guilt and the
punishment (probation) assessed by the jury.

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proffer conclusory, unsubstantiated observations. See Tong v. State, 25 S.W.3d at 710

(explaining that an appellant must support his contentions with relevant authority to be

adequately briefed); Lockett v. State, 16 S.W.3d 504, 505-506 n.2 (Tex. App.–Houston [1st

Dist.] 2000, pet. ref’d.) (stating that conclusory statements lacking citation to the record and

to authority presented nothing for review).        Since the proposition at issue consists of

nothing more than conclusory utterances without citation to authority, we hold that appellant

fulfilled neither his burden as explained in Tong and Thompson nor his duty as imposed by

Texas Rule of Appellate Procedure 38.1(h).

       Investigation

       As to the contention that appellant did not investigate the criminal background of

Edward Ramos, we acknowledge that counsel has a duty to reasonably investigate the

allegations levied by the State and defend against same. Yet, before it can be said that

the performance of trial counsel was unreasonably deficient in this regard, the appellant

must proffer some evidence indicating that pertinent information existed which could have

been discovered. Lockett v. State, 874 S.W.2d 810, 817 (Tex. App. – Dallas 1994, pet.

ref’d.). This is so because the failure to discover (or attempt to discover) non-existent

information can hardly be prejudicial.         More importantly, the various record excerpts

alluded to by appellant, reveal that the State informed both the court and opposing counsel

that Ramos “ha[d] no criminal history.” As explained by the prosecutor:

       [The State’s investigator] did . . . find the [sic] name of which [sic] is like the
       complaining witness [Ramos]. We have checked the identifiers. The
       identifiers do not match. I have questioned my witness about any priors. He




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      doesn’t have any. He has denied having any priors. And, like I said, the
      identifiers don’t match.3
Given the comments of the prosecutor and the failure of appellant to tender competent

evidence in support of his claim, we are unable to find that there existed information

beneficial to appellant which his trial counsel neglected to discover.

       Furthermore, no where does appellant cite us to evidence of record suggesting,

much less establishing, that trial counsel failed to investigate the background of witness

Ramos. Appellant merely concludes that she did not. Nor was trial counsel provided

opportunity to explain the extent of her investigation and preparation, if any, and the

motives or strategies underlying same. This generally proves fatal to a claim of ineffective

assistance. See Thompson v. State, 9 S.W.3d at 812-14 (holding that because the record

was silent as to why trial counsel did what he did, the appellant failed to rebut the

presumption that counsel’s actions were reasonable); Beck v. State, 976 S.W.2d 265, 266-

67 (Tex. App.--Amarillo 1998, pet. ref’d.) (holding the same).

       In short, we again conclude that appellant failed to carry his burden of proof. Given

that he failed to do so, we must also reject the contention that trial counsel acted

unreasonably in purportedly neglecting to investigate the criminal background of witness

Ramos.


        3
          We recognize that appellant attached to his brief a document entitled “Certificate of Disposition”
which purports to evince the criminal history of an “Eduardo Ramos Poblano” or “Eduardo Ramos Pablano.”
Yet, the instrument was not admitted as evidence in any proceeding conducted below. Nor was it attached
as evidence supporting any motion filed of record below. This, coupled with the rule restricting our review
of the cause to the record before the trial court, prevents us from considering the item for any purpose.
James v. State, 997 S.W.2d 898, 901 n.5 (Tex. App.--Beaumont 1999, no pet.). Moreover, the witness in
question was named Eduardo Poblamo Ramos, while the individual purportedly described in the document
was named Eduardo Ramos Poblano or Pablano. Given this difference in the name, we could not say with
any reasonable assurance that the witness at bar and the person referred to in the document are one and
the same, assuming the document was legitimately before us.

                                                    4
      Accordingly, the judgment is affirmed.




                                               Brian Quinn
                                                 Justice

Do not publish.




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