Opinion issued April 10, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00363-CR & 01-13-00364-CR ——————————— FRANCISCO ANTONIO LOPEZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court Harris County, Texas Trial Court Case No. 1204885 & 1204886
MEMORANDUM OPINION
Appellant, Francisco Antonio Lopez, pleaded guilty to the first-degree
felony offense of aggravated sexual assault of a child and the second-degree felony offense of indecency with a child.1 Following a presentence investigation hearing,
the trial court deferred adjudication of guilt and placed appellant on community
supervision for eight years. After two motions to adjudicate, which resulted in the
assessment of sixty days’ jail therapy and modifications to appellant’s community
service hours, the State moved to adjudicate guilt for the third time. The State
alleged that appellant had committed at least twelve distinct violations of the terms
and conditions of his community supervision. Appellant pleaded true to the
allegations that he had failed to attend at least eleven sex offender treatment
classes, to be successfully discharged from the sex offender treatment program,
and to pay court costs. Following a hearing on the motion to adjudicate, the trial
court revoked appellant’s community supervision and assessed punishment at
twenty years’ confinement for each offense, to run concurrently. 2 In one issue,
appellant contends that he was denied effective assistance of counsel.
We affirm.
1 See TEX. PENAL CODE ANN. § 22.021 (Vernon Supp. 2013) (aggravated sexual assault of a child); id. § 21.11 (Vernon 2011) (indecency with a child). 2 The charge for indecency with a child was assigned trial court cause number 1204885 and resulted in appeal number 01-13-00363-CR. The charge for aggravated sexual assault of a child was assigned trial court cause number 1204886 and resulted in appeal number 01-13-00364-CR.
2 Background
Appellant was charged with indecency with a child by sexual contact and
aggravated sexual assault of a child, his nephew. He pleaded guilty to both
charges on June 8, 2010. Following the presentence investigation, the trial court
placed appellant on deferred adjudication community supervision for eight years in
both counts, to run concurrently.
The trial court warned appellant that offenders were held to strict
compliance with the terms of their community supervision, expressed its concern
that appellant could not comply with the restrictions of community supervision,
and offered him the minimum prison sentences for his crimes, which appellant
refused. Subsequently, appellant violated the conditions of his probation by failing
to attend his sex offender treatment classes and by failing to comply with his
community service requirements. The State moved to revoke his community
supervision, and, on August 26, 2011, the trial court ordered sixty days’
confinement in the Harris County Jail as an additional condition of appellant’s
community supervision.
In the following six months, appellant missed five more sex offender
treatment classes and was unsuccessfully discharged from the treatment program.
Appellant also failed to complete the required number of community service hours,
and he failed to pay several required fees related to his community supervision.
3 Again, the State moved to revoke appellant’s community supervision. At the next
adjudication hearing, the trial court again emphasized that sex offender treatment
compliance “takes priority over anything else” and reduced appellant’s community
service obligation to sixty hours.
However, appellant again violated the terms and conditions of his
community supervision by failing to pay court costs. The State moved to
adjudicate appellant’s guilt for the third time on December 18, 2012, alleging
multiple grounds for granting its motion to adjudicate, including, among others, the
failure to pay court costs and failure to attend sex offender treatment as ordered.
On April 11, 2013, appellant attended an adjudication hearing with appointed
counsel, Thomas Lewis. Appellant pleaded true to failure to pay court costs,
failure to participate in sex offender treatment on eleven different occasions, and
failure to be successfully discharged from sex offender treatment.
At the hearing, appellant had an opportunity to explain why he repeatedly
violated the terms of his community supervision. He stated that he had
“transportation problems” and that he was only educated through the ninth grade.
Lewis inquired further about each issue, and appellant replied that his
transportation problems were due to “missing the Metro” and that he had dropped
out of school because his family had health issues. Lewis did not address either of
4 these two issues again, either with appellant or with his brother or father, who
testified later in the hearing.
The trial court revoked appellant’s community supervision and assessed his
punishment at twenty years’ confinement for each offense, with the sentences to
run concurrently. Appellant filed a notice of appeal without moving for a new
trial.
Ineffective Assistance of Counsel
In his sole issue, appellant argues that he received ineffective assistance of
counsel because during the adjudication hearing, Lewis presented only limited
mitigation evidence as to reasons why he violated the conditions of his community
supervision.
A. Standard of Review
An appellant must first show that his counsel’s performance fell below an
objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984); Robertson v. State, 187 S.W.3d 475, 483 (Tex.
Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
The second prong of Strickland requires an appellant to demonstrate prejudice—a
reasonable probability that, but for his counsel’s unprofessional errors, the result of
the proceeding would have been different. 466 U.S. at 694, 104 S. Ct. at 2068;
Thompson, 9 S.W.3d at 812. A reasonable probability is a probability sufficient to
5 undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at
2068. An appellant must prove ineffectiveness by a preponderance of the
evidence. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).
We indulge a strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance and, therefore, the appellant must
overcome the presumption that the challenged action constituted “sound trial
strategy.” Id. at 689, 104 S. Ct. at 2065; Williams v. State, 301 S.W.3d 675, 687
(Tex. Crim. App. 2009). Our review is highly deferential to counsel, and we do
not speculate regarding counsel’s trial strategy. See Bone v. State, 77 S.W.3d 828,
833, (Tex. Crim. App. 2002). To prevail, the appellant must provide an appellate
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Opinion issued April 10, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00363-CR & 01-13-00364-CR ——————————— FRANCISCO ANTONIO LOPEZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court Harris County, Texas Trial Court Case No. 1204885 & 1204886
MEMORANDUM OPINION
Appellant, Francisco Antonio Lopez, pleaded guilty to the first-degree
felony offense of aggravated sexual assault of a child and the second-degree felony offense of indecency with a child.1 Following a presentence investigation hearing,
the trial court deferred adjudication of guilt and placed appellant on community
supervision for eight years. After two motions to adjudicate, which resulted in the
assessment of sixty days’ jail therapy and modifications to appellant’s community
service hours, the State moved to adjudicate guilt for the third time. The State
alleged that appellant had committed at least twelve distinct violations of the terms
and conditions of his community supervision. Appellant pleaded true to the
allegations that he had failed to attend at least eleven sex offender treatment
classes, to be successfully discharged from the sex offender treatment program,
and to pay court costs. Following a hearing on the motion to adjudicate, the trial
court revoked appellant’s community supervision and assessed punishment at
twenty years’ confinement for each offense, to run concurrently. 2 In one issue,
appellant contends that he was denied effective assistance of counsel.
We affirm.
1 See TEX. PENAL CODE ANN. § 22.021 (Vernon Supp. 2013) (aggravated sexual assault of a child); id. § 21.11 (Vernon 2011) (indecency with a child). 2 The charge for indecency with a child was assigned trial court cause number 1204885 and resulted in appeal number 01-13-00363-CR. The charge for aggravated sexual assault of a child was assigned trial court cause number 1204886 and resulted in appeal number 01-13-00364-CR.
2 Background
Appellant was charged with indecency with a child by sexual contact and
aggravated sexual assault of a child, his nephew. He pleaded guilty to both
charges on June 8, 2010. Following the presentence investigation, the trial court
placed appellant on deferred adjudication community supervision for eight years in
both counts, to run concurrently.
The trial court warned appellant that offenders were held to strict
compliance with the terms of their community supervision, expressed its concern
that appellant could not comply with the restrictions of community supervision,
and offered him the minimum prison sentences for his crimes, which appellant
refused. Subsequently, appellant violated the conditions of his probation by failing
to attend his sex offender treatment classes and by failing to comply with his
community service requirements. The State moved to revoke his community
supervision, and, on August 26, 2011, the trial court ordered sixty days’
confinement in the Harris County Jail as an additional condition of appellant’s
community supervision.
In the following six months, appellant missed five more sex offender
treatment classes and was unsuccessfully discharged from the treatment program.
Appellant also failed to complete the required number of community service hours,
and he failed to pay several required fees related to his community supervision.
3 Again, the State moved to revoke appellant’s community supervision. At the next
adjudication hearing, the trial court again emphasized that sex offender treatment
compliance “takes priority over anything else” and reduced appellant’s community
service obligation to sixty hours.
However, appellant again violated the terms and conditions of his
community supervision by failing to pay court costs. The State moved to
adjudicate appellant’s guilt for the third time on December 18, 2012, alleging
multiple grounds for granting its motion to adjudicate, including, among others, the
failure to pay court costs and failure to attend sex offender treatment as ordered.
On April 11, 2013, appellant attended an adjudication hearing with appointed
counsel, Thomas Lewis. Appellant pleaded true to failure to pay court costs,
failure to participate in sex offender treatment on eleven different occasions, and
failure to be successfully discharged from sex offender treatment.
At the hearing, appellant had an opportunity to explain why he repeatedly
violated the terms of his community supervision. He stated that he had
“transportation problems” and that he was only educated through the ninth grade.
Lewis inquired further about each issue, and appellant replied that his
transportation problems were due to “missing the Metro” and that he had dropped
out of school because his family had health issues. Lewis did not address either of
4 these two issues again, either with appellant or with his brother or father, who
testified later in the hearing.
The trial court revoked appellant’s community supervision and assessed his
punishment at twenty years’ confinement for each offense, with the sentences to
run concurrently. Appellant filed a notice of appeal without moving for a new
trial.
Ineffective Assistance of Counsel
In his sole issue, appellant argues that he received ineffective assistance of
counsel because during the adjudication hearing, Lewis presented only limited
mitigation evidence as to reasons why he violated the conditions of his community
supervision.
A. Standard of Review
An appellant must first show that his counsel’s performance fell below an
objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984); Robertson v. State, 187 S.W.3d 475, 483 (Tex.
Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
The second prong of Strickland requires an appellant to demonstrate prejudice—a
reasonable probability that, but for his counsel’s unprofessional errors, the result of
the proceeding would have been different. 466 U.S. at 694, 104 S. Ct. at 2068;
Thompson, 9 S.W.3d at 812. A reasonable probability is a probability sufficient to
5 undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at
2068. An appellant must prove ineffectiveness by a preponderance of the
evidence. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).
We indulge a strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance and, therefore, the appellant must
overcome the presumption that the challenged action constituted “sound trial
strategy.” Id. at 689, 104 S. Ct. at 2065; Williams v. State, 301 S.W.3d 675, 687
(Tex. Crim. App. 2009). Our review is highly deferential to counsel, and we do
not speculate regarding counsel’s trial strategy. See Bone v. State, 77 S.W.3d 828,
833, (Tex. Crim. App. 2002). To prevail, the appellant must provide an appellate
record that affirmatively demonstrates that counsel’s performance was not based
on sound strategy. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); see
Thompson, 9 S.W.3d at 813 (holding that record must affirmatively demonstrate
alleged ineffectiveness).
In the majority of cases, the record on direct appeal is undeveloped and
cannot adequately reflect the motives behind trial counsel’s actions. Mallet, 65
S.W.3d at 63; see also Massaro v. United States, 538 U.S. 500, 504–05, 123 S. Ct.
1690, 1694 (2003) (“If the alleged error is one of commission, the record may
reflect the action taken by counsel but not the reasons for it. The appellate court
may have no way of knowing whether a seemingly unusual or misguided action by
6 counsel had a sound strategic motive or was taken because the counsel’s
alternatives were even worse. The trial record may contain no evidence of alleged
errors of omission, much less the reason underlying them.”). Because the
reasonableness of trial counsel’s choices often involves facts that do not appear in
the appellate record, the Court of Criminal Appeals has stated that trial counsel
should ordinarily be given an opportunity to explain his actions before a court
reviews that record and concludes that counsel was ineffective. See Rylander v.
State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003); Bone, 77 S.W.3d at 836;
Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).
B. Counsel’s Failure to Present Adequate Mitigation Evidence
Here, appellant failed to provide a record regarding Lewis’s trial strategy
and instead relies upon the transcript of his adjudication hearing, during which he
alleges that Lewis conducted an examination that did not expound upon two
possible excuses for his violations. Thus, appellant is essentially arguing that
Lewis was ineffective because he did not present adequate mitigating evidence.
However, the record demonstrates that appellant testified regarding these issues at
the hearing. On appeal, he has failed to identify any specific, additional mitigation
evidence that should have been admitted. See Bone, 77 S.W.3d at 836 (holding
that claim of ineffective assistance of counsel must address specific acts or
omissions); see also Wong v. Belmontes, 558 U.S. 15, 22–23, 130 S. Ct. 383, 387–
7 88 (2009) (holding that cumulative mitigation evidence is unnecessary). He has
likewise failed to provide a record giving any detail about his counsel’s
investigation.
Furthermore, Lewis did not testify or provide an affidavit, and the record
contains no evidence regarding the nature of his investigation into appellant’s case
or his trial strategy. See Rylander, 101 S.W.3d at 110–11. There is a strong
presumption that Lewis’s decisions regarding the admission or omission of
evidence were made for tactical reasons rather than through sheer neglect. See
Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 5 (2003); Strickland, 466 U.S. at
689–90, 104 S. Ct. at 2065–66. Without more than the arguments made here by
appellant, we cannot determine whether Lewis acted in accordance with a
reasonable strategy. See Rylander, 101 S.W.3d at 110–11; Bone, 77 S.W.3d at
835–36; see also Massaro, 538 U.S. at 504–05, 123 S. Ct. at 1694 (holding that
record on direct appeal typically does not contain evidence relevant to establish
either prong of Strickland).
Appellant has failed to establish that Lewis’s alleged failure to introduce
additional mitigation evidence fell below an objective standard of reasonableness.
See Robertson, 187 S.W.3d at 483; Bone, 77 S.W.3d at 836. Thus, he has failed to
establish that he received ineffective assistance of counsel. See Tong v. State, 25
8 S.W.3d 707, 712 (Tex. Crim. App. 2000) (holding that appellant must satisfy both
prongs of Strickland to prevail on ineffective assistance claim).
We overrule appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes Justice
Panel consists of Justices Keyes, Bland, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).