NO. 07-05-0029-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D APRIL 7, 2006

______________________________

AARON FLORE S, Appellant
v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE CO UNTY COURT AT LAW NO. 1 OF LUB BOCK COUNT Y; NO. 2004-488,881; HON. LARRY B. LADD, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN, C.J., and REAVIS an d CAMPBELL, JJ. Alleg i ng ineffective ass istance of counsel , appellant attac ks his conv iction for assault/domestic violen ce . Counsel w as purportedly

ineffective becau se he did not disclose to appellant

a plea offer made by the State and failed to conduct a proper investigation. W e overrule the issue and aff irm the judgment for the f ollowing reasons. First, one alleging that his counsel was ineffective has the burden to prove not only deficient performance but als o prejudice. Andrews v. State, 159 S. W .3d 9 8, 10 1 (Te x.2

Crim. App. 2005); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). If eith er or both requirements of the test go unsatisfied, then the claim must be rejected. Bone v. State , 77 S.W.3d at 833 n.8. Here, appell ant did not attempt to show how any of th e purported deficiencies ab out which he complains cr eated a reasonable pr

obability that the resultof hi s trial wou ld h avediff e red. That

matter went u nadd res sed i n hi s br ief. Cons eque ntly, he failed to carr y his bur den of proof. Dennis v . State , 151 S.W.3d 745, 752 (Tex. App. –Am arill o 200 4, pe t. re f’d ) (reje ctin g a cla im ofinef fec tive assis tance when appellant failed to brief the topic of prejud ice). Second, the claim of ineffectiv en ess m ust be firmly founded in the recor d. Thompson

v. State, 3 S.W.3d 808, 813 (Tex. Crim. App. 1999). Here, the r ecord fails to disclose the contents of the purported pl ea offer. Given this, we have no basis to assess whether he was harmed. Indeed, it may well be that the offer involved punishment more onerous than that u ltimately levied. We do not know and cannot specul ate on it. Nor are we c ited to evi dence of record i llustrati ng that a ppellant would have accepted the offer had he been told of it, ass uming of course appellant was not told of it. T his too is fatal to appellant’ s contention. See Dickerson v. State, 87 S.W.3d 632, 638 (Tex. App.–San Antonio 2002, no pet .) (holding thatan appellant must show that he would have accepted the plea offer). Fina lly, regarding the allegat ion that counsel failed t o unde rtake sufficient investig ation on behalf of a ppellant, the latter does no t inform us of what, if a nything, further investi gation would have uncovered. N or does he ex plain how any matter dis c overed, had such an investigation occurred, w ould have benefitted him. This too3

renders his contentio ns deficient

. See Ro driguez v. State, 74 S. W .3d 5 63, 5 66 (T ex. App.–Amarillo 2002, pet. ref’d) (holding that an abuse of discretion cann ot be found in rejecting a claim of ineffe ctive assistance when appellant does not illustrate how the failure to secure ev idence woul d have benefitted hi s defense). Acco rdin gly, we overrule appellant’s sole issue and affirm the judgment of the trial court.

Brian Quinn Chi ef Justice
Do not publish

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