Opinion
No. 04-03-00195-CR.
Delivered and Filed: April 7, 2004. DO NOT PUBLISH.
Appeal from the 186th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-1741, Honorable Sam Katz, Judge Presiding. Appellant's Motion for Rehearing Denied; Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Paul W. GREEN, Justice.
MEMORANDUM OPINION
The Court's previous opinion issued on February, 4, 2004 is withdrawn and this opinion is substituted. Appellant Michael Flores was indicted on the charge of aggravated assault with a deadly weapon. On December 10, 2002, Flores waived his right to a jury trial and entered a plea of no contest pursuant to a plea bargain. At the sentencing hearing, the trial court made an affirmative finding that Flores used or exhibited a deadly weapon in the commission of the offense. Flores's application for deferred adjudication was denied, and the court sentenced him to eight years' imprisonment and a $1000 fine. Flores now appeals in a single issue. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the conviction in this memorandum opinion under Tex.R.App.P. 47.1 for the following reason:
1. In his sole issue, Flores contends he was denied effective assistance of counsel during the sentencing phase of his trial. Specifically, Flores complains of counsel's failure to call several witnesses who would have allegedly testified in his favor. Flores further posits that, had these witnesses been called to testify, he would have been more likely to receive deferred adjudication.In order to prevail on an ineffective assistance of counsel claim, an appellant must show: (1) counsel's performance fell below an objective standard of reasonableness, and (2) prejudice, that is, a reasonable probability that, but for trial counsel's errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687-688, 694 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 2002). It is appellant's burden to overcome the presumption that the counsel's actions might be considered sound trial strategy. Strickland, 466 U.S. at 689. The appellant must prove, by a preponderance of the evidence, that his counsel's performance fell outside the wide range of reasonable professional assistance. Id.; Thompson, 9 S.W.3d at 813. Flores pled no contest to charges that he stabbed his girlfriend multiple times during a domestic argument. Although Flores claims his counsel was ineffective in failing to call his girlfriend or his parents, all of whom he claims wanted him to received deferred adjudication, he fails to point to any evidence in the record which supports this assertion. Although the record does contain affidavits stating that both the victim and Flores's parents were willing to testify on his behalf, it is devoid of any evidence that this testimony would have proved beneficial to Flores or altered the trial court's decision regarding sentencing. Without a showing that a witness would have provided helpful testimony an appellant cannot establish that his counsel's failure to call such witness constituted ineffective assistance. See King v. State, 649 S.W.2d 42, 44 (Tex.Crim. App. 1983); Mares v. State, 52 S.W.3d 886, 892 (Tex. App.-San Antonio 2001, pet. ref'd). Flores, then, has failed to show that his counsel's performance fell below an objective standard of reasonableness or that counsel's actions were not part of his sound trial strategy, failing to meet the first prong of the Strickland test. See Strickland, 466 U.S. at 687-688, 694. Even if Flores had shown that his counsel's failure to call these witnesses at the sentencing hearing fell below the objective standard, he fails to demonstrate a reasonable probability that but for counsel's alleged errors, the term of his sentence would have been different. Id. We overrule his only issue and affirm the judgment of the trial court.