In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-16-00023-CR
JOEY HUDDLESTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court
Gregg County, Texas
Trial Court No. 44,921-B
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
After a bench trial, Joey Huddleston was convicted of online solicitation of a minor and
was sentenced to twenty years’ imprisonment.1 See TEX. PENAL CODE ANN. § 33.021(c) (West
Supp. 2016). In his sole issue on appeal, Huddleston argues that his counsel rendered ineffective
assistance by failing to present any mitigating evidence during the punishment phase of his trial.
We find that the record does not affirmatively demonstrate counsel’s ineffectiveness.
Accordingly, we affirm the trial court’s judgment.
As many cases have noted, the right to counsel does not mean the right to errorless counsel.
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). In order to prevail on a claim
of ineffective assistance of counsel, the defendant must satisfy the two-pronged test set forth in
Strickland v. Washington. Strickland v. Washington, 466 U.S. 668, 687–88 (1984); see also
Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009); Thompson v. State, 9 S.W.3d 808,
812 (Tex. Crim. App. 1999). The first prong requires a showing that counsel’s performance fell
below an objective standard of reasonableness. Strickland, 466 U.S. at 688. The second Strickland
prong, sometimes referred to as “the prejudice prong,” requires a showing that, but for counsel’s
unprofessional error, there is a reasonable probability that the result of the proceeding would have
been different. Id. at 694.
“Failure to satisfy either prong of the Strickland test is fatal.” Johnson v. State, 432 S.W.3d
552, 555 (Tex. App.—Texarkana 2014, pet. ref’d) (citing Ex parte Martinez, 195 S.W.3d 713, 730
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While working as an in-school suspension teacher at Longview High School, Huddleston sent inappropriate messages
and pornographic photographs to a minor student. During punishment, the trial court heard that Huddleston had
engaged in similar acts with another minor and had also choked another student.
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n.14 (Tex. Crim. App. 2006)). “Thus, we need not examine both Strickland prongs if one cannot
be met.” Id. (citing Strickland, 466 U.S. at 697). Also, “[i]neffective assistance of counsel claims
must be firmly rooted in the record, with the record itself affirmatively demonstrating the alleged
ineffectiveness.” Id. (citing Lopez v. State, 343 S.W.3d 137, 142–43 (Tex. Crim. App. 2011)).
“We indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable, professional assistance and that it was motivated by sound trial strategy.” Id. (citing
Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)). “If counsel’s reasons for his
conduct do not appear in the record and there is at least the possibility that the conduct could have
been legitimate trial strategy, we will defer to counsel’s decisions and deny relief on an ineffective
assistance claim on direct appeal.” Id. (quoting Ortiz v. State, 93 S.W.3d 79, 88–89 (Tex. Crim.
App. 2002)). “Rarely will a reviewing court be provided the opportunity to make its determination
on direct appeal with a record capable of providing an evaluation of the merits of ineffective
assistance claims.” Id. (citing Thompson, 9 S.W.3d at 813). “‘In the majority of instances, the
record on direct appeal is simply undeveloped and cannot adequately reflect’ the reasoning of trial
counsel.” Id. at 813–14 (quoting Thompson, 9 S.W.3d at 813–14).
“Only in the rare case ‘in which trial counsel’s ineffectiveness is apparent from the record’
may the appellate court ‘address and dispose of the claim on direct appeal.’” Id. (quoting Lopez,
343 S.W.3d at 143). This is not such a case.
During the punishment phase, Huddleston’s counsel directed the trial court to the
presentence investigation report, which established that Huddleston had no prior criminal history.
He also argued that Huddleston was one of ten children raised by a single mother and noted that
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Huddleston had recently lost a sibling. Yet, on appeal, Huddleston argues that counsel was
ineffective because he “did not call any witnesses or present any other evidence for the court’s
consideration to mitigate punishment in the case.”
Huddleston provides no indication of what mitigating evidence counsel should have
presented or if such evidence even existed. We may presume that counsel did not call witnesses
during punishment because no one would testify on Huddleston’s behalf or because cross-
examination of those witnesses might be unfavorable to Huddleston. We may also presume that
the only mitigating evidence that existed was the evidence presented by counsel at punishment.
Simply put, the absence of any record demonstrating counsel’s reasons for his actions
makes it impossible for us to find deficient performance on the part of Huddleston’s trial counsel.
“Failure to make the required showing of . . . deficient performance . . . defeats the ineffectiveness
claim.” Strickland, 466 U.S. at 700. Accordingly, we overrule Huddleston’s sole point of error.
We affirm the trial court’s judgment.
Bailey C. Moseley
Justice
Date Submitted: October 26, 2016
Date Decided: October 27, 2016
Do Not Publish
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