Opinion issued February 11, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00484-CR
NO. 01-15-00485-CR
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CHRISTIAN AVERY NORRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Case Nos. 1432555 and 1432805
MEMORANDUM OPINION
Christian Norris pled guilty to violating a protective order and assault on a
family member, second offense, without an agreed recommendation for
punishment from the State. Following a presentence investigation (PSI) hearing,
the trial court assessed his punishment at four years’ imprisonment. See TEX.
PENAL CODE ANN. §§ 22.01(b)(2)(A), 25.07 (West 2011 & Supp. 2015). He
appeals his conviction, contending that his trial counsel was ineffective. We
affirm.
BACKGROUND
In 2012, Christian Norris pled guilty to assaulting Joriana Prespentt, the
mother of his child, with whom he had an intermittent romantic relationship. The
court issued a protective order prohibiting Norris from contacting, harassing,
threatening, or assaulting Prespentt for two years.
In 2014, before the protective order expired, Prespentt invited Norris to
spend the night with her and their daughter. Early in the morning, upon finding
text messages and pictures from another man on Prespentt’s phone, Norris got
angry. According to Prespentt, he questioned her about the messages. When she
ignored him, he began yelling at her, pushing her on the bed and squeezing her
arms. Norris then smashed Prespentt’s phone. After Prespentt asked Norris to
leave, Norris picked up their daughter, telling Prespentt that he was taking their
daughter away. A struggle ensued, in which Norris tried to leave with the girl and
Prespentt tried to stop him. In this struggle, Norris pushed Prespentt into a toilet
and again into the stairway banister, breaking one of its supports. Over Prespentt’s
resistance, Norris put their daughter in his car and drove away.
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In his account, Norris conceded that he had gotten into an argument with
Prespentt over the text messages and pictures that she had received. He claimed
that when Prespentt tried to stop him from leaving with their daughter, he grabbed
Prespentt’s hands and forced her to the bed. Norris explained that when he went to
retrieve his bag as he left, Prespentt fell and dropped her phone in the toilet.
Norris was charged with assault on a family member, second offense, and
violating a protective order. Declining a plea bargain offer of four years’
imprisonment, Norris pled guilty without a recommendation on punishment by the
State. A presentence investigation report was prepared, which contained
Prespentt’s and Norris’s respective accounts, Norris’s social history, and character
reference letters in support of Norris. The trial court conducted a punishment
hearing, in which Prespentt and Norris testified. After reviewing the report and
hearing the parties’ arguments, the trial court assessed Norris’s punishment at four
years’ imprisonment.
DISCUSSION
To prevail on a claim of ineffective assistance of counsel, the defendant
must show that (1) his counsel’s performance was deficient and (2) a reasonable
probability exists that the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2065 (1984);
Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005). A defendant
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has the burden to establish both prongs by a preponderance of the evidence; failure
to make either showing defeats his ineffectiveness claim. Mitchell v. State, 68
S.W.3d 640, 642 (Tex. Crim. App. 2002). We apply a strong presumption that
counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999). We presume trial counsel’s actions were reasonably professional and
motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994); Johnson v. State, 176 S.W.3d 74, 78 (Tex. App.—Houston [1st
Dist.] 2004, pet. ref’d). Furthermore, a claim of ineffective assistance must be
firmly supported in the record. Thompson, 9 S.W.3d at 813. Where the record
does not offer an explanation for trial counsel’s actions, we must presume that
counsel made all significant decisions in the exercise of reasonable professional
judgment. Jackson, 877 S.W.2d at 771; Broussard v. State, 68 S.W.3d 197, 199
(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).
Norris contends that his trial counsel did not (1) introduce mitigating
evidence, (2) introduce evidence of his probation eligibility, or (3) argue that
Norris should be sentenced to probation, and that in failing to do so, his trial
counsel was ineffective.
1. Failure to Introduce Mitigating Evidence
Norris complains that his trial counsel should have presented mitigating
evidence apart from Norris’s own testimony at his punishment hearing. Norris
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claims that his counsel failed to introduce any evidence that could counteract the
State’s evidence of his bad character. He asserts that there was mitigating
evidence available, citing mitigating evidence in the clerk’s record and noting
testimony in the record indicating that his mother was present and could have
testified.
Usually, the record on direct appeal will not be sufficient to support an
ineffective assistance claim. See Thompson, 9 S.W.3d 808, 814–15 (citing Jackson
v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998)) (“In the majority of
instances, the record on direct appeal is simply undeveloped and cannot adequately
reflect the failings of trial counsel.”). In the context of allegations that the
defendant’s trial counsel failed to call certain witnesses, this is because the record
does not show what witnesses trial counsel could have called and how their
testimony would have benefitted the defendant’s case. Ex parte McFarland, 163
S.W.3d 742, 758 (Tex. Crim. App. 2005); Brooks v. State, 357 S.W.3d 777, 791–
92 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).
In Jagaroo v. State, our sister court was presented with a similar claim that
Jagaroo’s counsel was ineffective for failing to present mitigation evidence at
Jagaroo’s punishment hearing. 180 S.W.3d 793, 799–800 (Tex. App.—Houston
[14th Dist.] 2005, pet. ref’d). The court noted that positive reference letters were
attached to the defendant’s presentence investigation report, which was admitted
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into evidence. Id. Noting that Jagaroo had not filed a motion for new trial or
pointed to any mitigating evidence beyond that presented to the trial court, the
appellate court held that Jagaroo had failed to show that his counsel’s performance
was deficient. Id.
As in Jagaroo, the trial court in this case had mitigating evidence before it in
the form of character reference letters, vitiating Norris’s complaint that his counsel
completely failed to present evidence in mitigation. See id. Norris also has failed
to show the substance of the mitigating evidence his trial counsel should have
presented and how it could have benefitted him. See id. To prove that trial
counsel erred by failing to call certain witnesses, the defendant must show what
witnesses he would have called and how their testimony would have benefitted
him. McFarland, 163 S.W.3d at 758; Brooks, 357 S.W.3d at 79. Norris identifies
no witnesses who could have testified in his defense, apart from his mother, and
the record is silent as to what his mother would have said. Thus, Norris cannot
show that his trial counsel was ineffective. See id.; McFarland, 163 S.W.3d at
758; Brooks, 357 S.W.3d at 792.
2. Failure to Prove Probation Eligibility
Norris further complains that his trial counsel should have presented
evidence that he was eligible for probation at his punishment hearing. Norris cites
Ware v. State, in which the Waco Court of Appeals held that the defendant’s trial
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counsel was ineffective for failing to prove his probation eligibility. 875 S.W.2d
432, 438 (Tex. App.—Waco 1994, pet. ref’d). In Ware, however, a jury assessed
punishment. Id. at 433. A jury may only assess probation if it finds that the
defendant has not previously been convicted of a felony. TEX. CODE CRIM. PROC.
ANN. art. 42.12 § 4(e) (West 2007 & Supp. 2015). A defendant who elects to be
sentenced by the trial judge, as Norris did, may be eligible for probation even if he
has been previously convicted of a felony. Id. § 3. Thus, because Norris was
eligible for probation and did not have to prove that he had not been convicted of a
felony to be eligible for probation, his counsel was not ineffective for failing to
make such proof. Id.
3. Failure to Argue for Probation or Deferred Adjudication
Finally, Norris contends that his counsel was ineffective because he argued
as follows:
I’m going to suggest to the Court that some time in jail is
necessary for Mr. Norris in order to—for the Court to
impress on him the fact that when this Court tells you
something, it means it. And I’m not talking about a short
term of county jail.
I’m going to ask the Court, however, to grant him
deferred adjudication after he’s spent some time in jail
learning that he better abide by what this Court says.
Norris interprets this as a request for a lengthy prison sentence instead of
probation or deferred adjudication. He contends that because his trial counsel did
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not argue that Norris should be sentenced to probation or deferred adjudication, he
was denied effective assistance. Norris’s trial counsel clearly asked, however, that
Norris be given “a significant amount of time in jail as a condition of a deferred
adjudication.”
Further, Norris’s counsel was not ineffective for conceding that he should
spend some time in jail. This was Norris’s second conviction for assault against a
family member, making a sentence of straight probation or deferred adjudication
less likely. Norris’s counsel may have conceded that Norris, a repeat offender,
should be sentenced to some jail time to establish his credibility in asking the
judge for a light sentence. See Riley v. Cockrell, 339 F.3d 308, 317 (5th Cir.
2003) (quoting Carter v. Johnson, 131 F.3d 452, 466 (5th Cir. 1997)) (“To
establish credibility with the jury, counsel may make a tactical decision to
‘acknowledge the defendant’s culpability and may even concede that the jury
would be justified in imposing the death penalty.’”). Because we presume that
counsel’s actions were motivated by sound trial strategy, we hold that Norris has
failed to meet his burden to demonstrate that his trial counsel was ineffective. See
Jackson, 877 S.W.2d at 771; Johnson, 176 S.W.3d at 78.
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Conclusion
Finding that Norris failed to satisfy the Strickland burden, we affirm the
judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Jennings, Keyes, and Bland.
Do not publish. See TEX. R. APP. P. 47.2(b).
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