Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION In September 2014, Delbert Sisemore pled not guilty to charges of possession of a controlled substance of less than one gram, burglary of a habitation, and aggravated robbery with an affirmative finding of a deadly weapon.^[1] Less than a year later, Sisemore entered guilty pleas to the charges of possession and burglary of a habitation. Sisemore elected to have a jury decide

his fate as to the aggravated robbery charge and to also have a jury determine his punishment for the possession of a controlled substance and burglary of a habitation convictions. Pursuant to his requests, a jury was convened and Sisemore was found guilty of aggravated robbery. The jury

also assessed his punishment at (1) two years’ confinement in a state jail facility for possession of less than one gram of a controlled substance, (2) ten years’ confinement in prison for burglary of a habitation, and (3) forty-five years in prison for aggravated robbery. The trial court entered judgments of conviction and sentences in accord with the jury’s verdicts. Sisemore timely filed his notice of appeal.2

In his sole point of error, Sisemore contends he received ineffective assistance of counsel because his trial counsel failed to offer any evidence in his defense during the punishment phase of the proceedings. Sisemore asks this Court to reverse the trial court’s imposition of his forty- five-year sentence for aggravated robbery and to remand his case for a new trial on punishment.

Because Sisemore is unable to show that counsel’s ineffectiveness, if any, resulted in a reasonable probability that the result of the proceeding would have been different, we overrule his sole point of error and affirm the trial court’s judgment.

I. Background3

During the punishment phase of Sisemore’s trial, the State called multiple witnesses, including a law enforcement officer who testified that Sisemore had been previously convicted of multiple misdemeanor charges and at least one felony and that he had also been previously placed on community supervision but failed to successfully complete it. Another officer testified that

Sisemore had been involved with the manufacture of methamphetamine. In addition, a community

supervision officer testified that while on community supervision, Sisemore tested positive for the use of methamphetamine, at which time the State filed a motion to revoke.

In contrast to the State’s presentation of punishment evidence, Sisemore’s defense counsel

waived his opening and closing arguments and refrained from presenting any testimony or evidence in his defense, including cross-examining the State’s witnesses. According to the record, Sisemore’s trial counsel proceeded in this manner based, at least in part, on Sisemore’s instructions. Outside the presence of the jury, defense counsel called Sisemore to the stand to testify in regard to his wishes:

[Counsel for Appellant]: Delbert, prior to the beginning of the punishment phase, was it not your communication to me that you did not want me to cross- examine any witnesses, present any witnesses on your behalf, or make any arguments to the jury?

3 Because Sisemore’s argument on appeal is based solely on the issue of his trial counsel’s ineffectiveness during the punishment phase of the proceedings, we will dispense with a lengthy recitation of the factual background making up the allegations contained in the indictment against him.

[Appellant]: Correct.

[Counsel for Appellant]: And I informed your family and informed you that they wanted to testify, but it was your decision that no testimony be presented or argument made?

[Appellant]: Correct.

[Counsel for Appellant]: That’s all I have, Your Honor.

Despite his instructions, Sisemore maintains on appeal that he received ineffective assistance of counsel because his counsel complied with his request. We disagree.

II. Ineffective Assistance of Counsel

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). “Ineffective assistance of counsel claims are evaluated under the two-part test formulated in Strickland, requiring a showing of both deficient performance and prejudice.” Johnson v. State, 432 S.W.3d 552, 555 (Tex. App.—Texarkana 2014, pet. ref’d)

(citing Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812

(Tex. Crim. App. 1999); Fox v. State, 175 S.W.3d 475, 485 (Tex. App.—Texarkana 2005, pet. ref’d)). “To prevail on his ineffective assistance claims, [Sisemore] must prove by a preponderance of the evidence that (1) his counsel’s representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense.” See id. (citing

Strickland, 466 U.S. at 687; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000)). “Failure to satisfy either prong of the Strickland test is fatal.” Id. (citing Ex parte Martinez, 195 S.W.3d

713, 730 n.14 (Tex. Crim. App. 2006)). “Thus, we need not examine both Strickland prongs if one cannot be met.” Id.

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. Strickland v. Washington, 466 U.S. 668, 694 (1984). “A reasonable probability” is defined as “a probability

sufficient to undermine confidence in the outcome.” Id. Thus, in order to establish prejudice, an applicant must show “that counsel’s errors were so serious as to deprive defendant of a fair trial, a trial whose result was reliable.” [Strickland, 466 U.S.] at 687. It is not sufficient for Applicant to show “that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, [he] must show that “there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695.

Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).

III. Analysis

Sisemore contends he is not required to make a showing of prejudice because his trial

counsel’s performance amounted to being “totally absent” during a critical stage of the proceedings. See Goodspeed v. State, 187 S.W.3d 390, 396–97 (Tex. Crim. App. 2005) (Holcomb, J., dissenting).4 Sisemore maintains that his trial counsel’s failure to present evidence or cross- examine the State’s witnesses resulted “in the deprivation of an entire judicial proceeding.” See

Ex parte Crow, 180 S.W.3d 135, 137–38 (Tex. Crim. App. 2005). Sisemore contends that the error in this case “defies a harm analysis because subjecting the error to Strickland prejudice would render meaningless the protections afforded by the right to counsel.” See Goodspeed, 187 S.W.3d at 396 (citing Penson v. Ohio, 488 U.S. 75, 109 (1988)).

In support of his position, Sisemore cites Crow. In that case, Crow was charged with the offense of aggravated robbery, pled not guilty, and subsequently, was found guilty by a jury.

Crow, 180 S.W.3d at 137. He appealed the trial court’s judgment of conviction, was appointed appellate counsel, challenged the legal and factual sufficiency of the evidence, and alleged a

Batson5 error. The appellate court affirmed the trial court’s judgment, but appellate counsel failed

to inform Crow of the court’s decision. Consequently, Crow did not become aware of the court of appeal’s decision until after the time in which he could have filed a petition for discretionary review. Crow then filed a pro se application for a writ of habeas corpus maintaining that he discovered the appellate court’s opinion after his own inquiry, that he was deprived of his right to file a petition for discretionary review, and that had one been filed, there was a significant chance his conviction would have been reversed. In his writ application, Crow did not explain why he believed his petition for discretionary review would have had merit. The Texas Court of Criminal

Appeals stated, But Johnson[6] recognized that Supreme Court precedent treats certain attorney errors a little differently under Strickland’s prejudice prong than is ordinarily the case. For attorney errors that involve a deprivation amounting to a structural defect, the prejudice inquiry is more limited. These errors are rare, but include deficient conduct that results in the deprivation of an entire judicial proceeding, such as an appeal.

Id. at 137–38 (citations omitted). Sisemore contends that because his trial counsel failed to present defense witnesses or cross-examine the State’s witnesses, he was “depriv[ed] of an entire judicial proceeding” and that, therefore, he is relieved of proving he was prejudiced by his counsel’s performance. See id. We disagree.

In Crow, appellant had no choice as to whether he would file a petition for discretionary review because his counsel failed to inform him of the appellate court’s decision to affirm the trial

court’s judgment. He was, in fact, “depriv[ed] of an entire judicial proceeding.” Id. In this case, Sisemore was given the opportunity to present witnesses and to cross-examine the State’s witnesses. The record shows that it was Sisemore’s own decision that prevented him from presenting a defense and not trial counsel’s alleged ineffectiveness. Because of the instructions

Sisemore gave, he cannot now say that he was denied an entire proceeding, nor can he do so based on his trial counsel’s compliance with his instructions.

Despite his argument to the contrary, we find that Sisemore is required to show that he was

prejudiced by his trial counsel’s performance at trial. See Strickland, 466 U.S. at 687. Generally, a failure to call witnesses does not constitute ineffective assistance of counsel without a showing that the witnesses were available to testify and that their testimony would have benefited the accused. Butler v. State, 716 S.W.2d 48, 55 (Tex. Crim. App. 1986). While the record shows that

Sisemore’s family members were available at trial to testify, it reveals nothing of what their purported testimony would have been. In short, the record has not been developed to allow this

Court to properly address Sisemore’s claim. There is simply no way for this Court to conclude that trial counsel’s compliance with Sisemore’s instructions was deficient performance.

Sisemore has not met his burden of showing that, but for counsel’s alleged ineffective assistance, there is a reasonable probability that the result of the proceeding would have been different.

IV. Conclusion

We affirm the trial court’s judgment.

Bailey C. Moseley Justice Date Submitted: June 3, 2016 Date Decided: June 6, 2016 Do Not Publish