Anthony Michael Hennard v. State

• Court: Court of Appeals of Texas
• Decided: September 12, 2018
• Docket: 09-17-00271-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-17-00271-CR ____________________

ANTHONY MICHAEL HENNARD, Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________ ______________

On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 12-04-04166-CR ________________________________________________________ _____________

MEMORANDUM OPINION

In this appeal, Anthony Michael Hennard challenges the trial court’s decision

to revoke the order it issued placing Hennard on community supervision, and then

found Hennard guilty of the offense of indecency with a child by exposure.1 In one

issue, Hennard argues that his trial counsel rendered ineffective assistance by failing

1 See Tex. Penal Code Ann. § 21.11(a)(2) (West Supp. 2011) (Indecency with a Child). 1 to advise him before he decided to plead true to violating the community supervision

order that he could have challenged the admissibility of the results of a polygraph

examination required by the order.

Because Hennard pleaded true to violating the community supervision order

in ways that are independent of any issues surrounding the results of his polygraph,

we affirm.

Background

In 2014, and based on the terms of a plea agreement, Hennard pleaded guilty

to the crime of indecency with a child by exposure. 2 In carrying out the agreement,

the trial court deferred pronouncing Hennard guilty on the charge and placed him on

community supervision for a period of five years.

Around two years later, the State moved to revoke the trial court’s community

supervision order. According to the State, Hennard violated the order in sixty

separate ways. During the hearing on the motion, Hennard pleaded “true” to thirty

of the alleged violations and “not true” to the others. After the hearing, the trial court

found all the violations alleged in the State’s motion to be true. Based on those

findings, the trial court revoked the community supervision order, found Hennard

2 Id. 2 guilty of the allegations in the indictment used to charge him with indecency, and

assessed a seven-year sentence.

In his brief, Hennard argues that his attorney should have advised him to plead

“not true” to the allegations in the motion to revoke that would have required the

State to present evidence about the polygraph examination that Hennard took while

on community supervision. According to Hennard, his attorney should have advised

him that he could challenge the admissibility of the results of the polygraph by

claiming that the State obtained the evidence in violation of his Fifth Amendment

rights, which prohibits the use of evidence obtained from a defendant without first

warning the defendant that the evidence could be used against him. See U.S. Const.

amend. V.

Standard of Review

We review a trial court’s decision to revoke a community supervision order

using an abuse-of-discretion standard.3 To prevail in a revocation hearing, the State

must establish, by a preponderance of the evidence, that the defendant violated at

least one term or condition of the community supervision order.4 Much like the

3 Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). 4 Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009) (noting that one violation is sufficient to affirm a trial court’s decision revoking an order placing a defendant on community supervision); Gobell v. State, 528 S.W.2d 223 (Tex. Crim. 3 circumstances before the Court of Criminal Appeals in Smith v. State, 286 S.W.3d

333, 342 (Tex. Crim. App. 2009), Hennard claims only that his counsel was

ineffective based on the manner he handled some, but not all, of the allegations in

the State’s motion.

In general, “[a] plea of true, standing alone, is sufficient to support the

revocation of community supervision and adjudicate guilt.”5 Usually, establishing

that a defendant violated a single condition of a community supervision order allows

an appellate court to affirm the trial court’s ruling revoking the order used to place

a defendant on community supervision.6 Because Hennard is claiming he received

ineffective assistance of counsel, he must establish that “but for his counsel’s

unprofessional errors, the results of the proceedings would have been different.”7

“Direct appeal is usually an inadequate vehicle for raising such a claim because the

App. 1975) (explaining that the trial court did not abuse its discretion in revoking the defendant’s probation when the defendant failed to challenge all the grounds on which the trial court revoked its decision placing the defendant on community supervision). 5 Tapia v. State, 462 S.W.3d 29, 31 n.2 (Tex. Crim. App. 2015) (citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980)). 6 Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012) (stating that “proof of a single violation will support revocation”). 7 Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). 4 record is generally undeveloped.”8 The problems created by an inadequate record

applies when the defendant claims “deficient performance” by his counsel, as

without a fully developed record, counsel’s reasons for failing to do something are

rarely apparent from the record.9 Trial counsel “should ordinarily be afforded an

opportunity to explain his actions before being denounced as ineffective.” 10 When

trial counsel’s explanation is not in the record, the appellate court should not find

counsel was deficient unless the challenged conduct was “so outrageous that no

competent attorney would have engaged in it.”11

Analysis

On appeal, Hennard argues his counsel was ineffective because he failed “to

advise [Hennard] not to plead true to those eleven [violations in the State’s motion

to adjudicate that were dependent on the polygraph results], as they formed a

substantial part of the State’s case, and should not have been considered by the Court

in her ruling to revoke [Hennard’s] probation, and/or to punish him with seven (7)

8 Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012) (citing Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). 9 Id. at 593. 10 Menefield, 363 S.W.3d at 593 (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). 11 Id. at 593. 5 years in TDCJ-ID.” Hennard concludes the trial court would have ruled differently

had his attorney advised him to plead not true on the violations on which the State

would have needed to ask the court to admit the polygraph.

Hennard has not claimed that trial counsel was ineffective for failing to advise

him to plead true to all the violations that the trial court relied on in revoking the

community supervision order. And significantly, most of the trial court’s findings

relevant to Hennard’s violations are unrelated to any questions about the

admissibility of the results of his polygraph. Thus, Hennard cannot show the

outcome of the hearing would have been different had he pleaded not true to the

allegations that might have required the State to ask the trial court to consider the

polygraph. The record also fails to establish that the trial court gave Hennard a more

severe punishment than he would have received had he elected to plead not true to

the allegations that he claims his counsel should have recommended that he

challenge.

Conclusion

We conclude the record supports the trial court’s judgment. 12 We overrule

Hennard’s sole issue and affirm the judgment.

12 See Smith, 286 S.W.3d at 342. 6 AFFIRMED.

_________________________ HOLLIS HORTON Justice

Submitted on August 13, 2018 Opinion Delivered September 12, 2018 Do Not Publish

Before Kreger, Horton and Johnson, JJ.