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


1
 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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