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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Jason Paul Harper v. State
Combined Opinion