                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                  Nos. 07-16-00404-CR
                                        07-16-00405-CR


                         JASON PAUL HARPER, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 320th District Court
                                   Potter County, Texas
        Trial Court Nos. 70,490-D & 70,491-D, Honorable Don R. Emerson, Presiding

                                     July 18, 2017

                           MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      Jason Paul Harper (appellant) appeals his convictions for unlawfully possessing

a firearm and possessing methamphetamine with intent to deliver. Through a single

issue, he contends he received ineffective assistance of counsel during punishment.

We affirm.

      In its recent decision of Ex parte Bowman, __ S.W.3d __, 2017 Tex. Crim. App.

LEXIS 582 (Tex. Crim. App. June 28, 2017), the Court of Criminal Appeals reiterated

the standard applied when reviewing ineffective assistance claims.
      In order to prevail on a Sixth Amendment claim of ineffective assistance of
      counsel, a [defendant] must show, by a preponderance of the evidence,
      that “counsel’s performance was deficient.” Strickland v. Washington, 466
      U.S. 668, 687 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim.
      App. 2011). [They] must show that counsel’s performance failed to satisfy
      an objective standard of reasonableness under prevailing professional
      norms. Strickland, 466 U.S. at 688. A reviewing court must assess
      reasonableness under the circumstances of the particular case “viewed as
      of the time of counsel’s conduct.” Id. at 688, 690. Isolated errors or
      omissions of counsel do not amount to deficient performance, which is
      judged by the totality of the representation. Robertson v. State, 187
      S.W.3d 475, 483 (Tex. Crim. App. 2006). Constitutionally competent legal
      representation is not a static thing: “[t]here are countless ways to provide
      effective assistance in any given case.” Strickland, 466 U.S. at 689.
      “[C]ounsel’s function, as elaborated in prevailing professional norms, is to
      make the adversarial testing process work in the particular case.” Id. at
      690. The presumption is that counsel “rendered adequate assistance and
      made all significant decisions in the exercise of reasonable professional
      judgment.” Id. [A defendant] who cannot overcome this presumption by a
      preponderance of the evidence will not succeed in his Sixth Amendment
      claim. See id. at 697 (“[T]here is no reason for a court deciding an
      ineffective assistance claim . . . to address both (the deficiency prong and
      prejudice prong of the Strickland standard) if the defendant makes an
      insufficient showing on one.”). The [defendant] must identify with
      particularity “the acts or omissions of counsel that are alleged not to have
      been the result of reasonable professional judgment.” Id. at 690.

                                       *****
      An advocate’s strategic decisions must be informed by a reasonable
      preliminary investigation. “[C]ounsel has a duty to make reasonable
      investigations or to make a reasonable decision that makes particular
      investigations unnecessary.” Id. at 691. “In any ineffectiveness case, a
      particular decision not to investigate must be directly assessed for
      reasonableness in all the circumstances, applying a heavy measure of
      deference to counsel’s judgments.” Wiggins v. Smith, 539 U.S. 510, 521-
      22 (2003). “[S]trategic choices made after thorough investigation of law
      and facts relevant to plausible options are virtually unchallengeable[.]”
      Strickland, 466 U.S. at 690.


Ex parte Bowman, __ S.W.3d at __, 2017 Tex. Crim. App. LEXIS 582, at *25-26.

      Here, appellant contends that “by merely resting and not putting on any

punishment evidence defense counsel was deficient.” Therefore, “he effectively had no



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counsel in the punishment portion of the trial.” He, further, argues that “he was denied

his Sixth Amendment right to effective assistance of counsel.”

      It is clear that defense counsel need not present mitigating evidence in every

case to be deemed reasonably effective. Wiggins v. Smith, 539 U.S. 510, 533, 123 S.

Ct. 2527, 2541, 156 L. Ed. 2d 471 (2003) (stating that “Strickland does not require

counsel to investigate every conceivable line of mitigating evidence no matter how

unlikely the effort would be to assist the defendant at sentencing. Nor does Strickland

require defense counsel to present mitigating evidence at sentencing in every case.

Both conclusions would interfere with the ‘constitutionally protected independence of

counsel’“). Furthermore, Bowman mandates that the reasonableness of an attorney’s

performance be assessed against the circumstances of the particular case. Combining

what both Wiggins and Bowman tell us, we observe two things.

      First, one of the circumstances incremental to appellant’s argument and burden

is the existence of evidence potentially influencing appellant’s punishment in a favorable

way. If none exists then counsel could hardly be castigated for not presenting it. See

Medina v. State, No. AP-76,036, 2011 Tex. Crim. App. Unpub. LEXIS 1, at *44 (Tex.

Crim. App. Jan. 12, 2011) (not designated for publication) (holding that “[b]y not

specifying what evidence his counsel should have presented, the appellant has failed to

present a basis to conclude that defense counsel’s decision not to present evidence

was unreasonable, or that there is a reasonable probability that the result would have

been different”). Second, should appellant clear that initial hurdle, he should then try to

explain why the decision to withhold the evidence was unreasonable. And, since the

burden lay with appellant to establish his claim by a preponderance of the evidence, we



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need not sua sponte peruse the record for the requisite evidence or contrive the missing

explanation.

      Appellant said nothing about the existence of mitigating evidence favorable to

him. Nor did he attempt to cite us to such evidence. Similarly missing is argument

purporting to explain why withholding the unknown evidence was unreasonable, under

the circumstances.   Because appellant cleared neither of the two hurdles mentioned

above, we cannot say that he carried his burden to show his trial attorney’s performance

was deficient. See Medina v. State, supra. Therefore, we overrule his sole issue.

      The judgments of the trial court are affirmed.



                                                       Brian Quinn
                                                       Chief Justice

Publish.




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