COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-10-00397-CR
KEITH L. MCCLELLAN APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
I. Introduction
Appellant Keith L. McClellan appeals the trial court’s judgment adjudicating
his guilt and sentencing him to twenty years in prison. Appellant raises two
issues, asserting that the trial court abused its discretion by admitting
inadmissible hearsay evidence and that his counsel was ineffective at the
adjudication hearing. We affirm.
II. Procedural and Factual Background 1 See Tex. R. App. P. 47.4. In March 2005, a Tarrant County grand jury indicted Appellant on charges
of aggravated assault with a deadly weapon. Pursuant to a plea bargain
agreement, the trial court placed Appellant on deferred adjudication community
supervision for five years beginning January 19, 2006. In March 2010, the State
filed a petition to proceed to adjudication, alleging in eight paragraphs that
Appellant violated the terms and conditions of his community supervision. The
trial court held a hearing on the State’s petition to adjudicate on July 7, 2010.
Appellant pleaded “not true” to each allegation.
At the hearing, Sergeant Gregory Morgan testified that he was an
investigator with the Hamilton Sheriff’s Department in Cincinnati, Ohio, and that
in January 2010 Appellant became a “target” in an on-going investigation of “a
local group of individuals that were taking stolen items in trade for heroin in
Cincinnati.”2 With the help of a confidential informant, officials recorded phone
calls Appellant made and received while in Cincinnati on January 12, 2010, in
which he offered to sell the informant heroin. During these calls, the informant
asked for two ounces of heroin, and Appellant explained that he could sell him a
half ounce for $1000 and that another shipment would be arriving the next day.
Appellant then told the informant he was on his way to meet him. During the
2 Tarrant County Probation Officer Loretta Wilson testified that she began supervising Appellant in March 2009, and that she issued a permit to Appellant to travel to Cincinnati, Ohio, in January 2010, for the birth of his son. She had previously issued permits for Appellant to travel to Cincinnati in June, August, and October 2009.
2 phone calls, a team of narcotics officers was conducting surveillance outside the
Cincinnati residence where Appellant was staying.3 When Appellant exited the
residence and drove away, the narcotics team followed.
Cincinnati Police Officer Chris Perry (assigned to this regional narcotics
team) testified that he stopped Appellant at the request of the surveillance team
that same day, arrested him, and transported him to the jail in the backseat of his
marked squad car. Appellant possessed $2200 in cash upon arrest. 4 Officer
Perry testified that during the drive, Appellant was moving around quite a bit,
including bending at the waist, and moving his feet around. When Officer Perry
searched the car, he found a balled-up plastic baggie in a corner of the
floorboard that had not been there before Appellant’s arrest. A chemist with the
Hamilton County crime laboratory determined the contents to be a half ounce (14
grams) of heroin.
The narcotics team executed a search warrant for the residence.
Cincinnati Police Officer Paul Fangman testified that officers found a .50 caliber
Desert Eagle pistol (with a loaded magazine inside) under a couch cushion in the
3 The confidential informant told officials that Appellant was staying in the residence while in town; the surveillance team saw Appellant go in and out of the residence; and inside the residence officials found luggage, clothing big enough to fit Appellant’s “large frame,” Appellant’s birth certificate, and paperwork regarding Appellant’s Tarrant County community supervision. There was also testimony that other people had been seen inside the residence. 4 Probation officer Wilson testified that Appellant told her he was working forty hours a week at K & B Family Cleaners for $9.00 an hour.
3 first floor living room of the small, single-family, two-story residence. Upstairs,
Officer Fangman found a .9 millimeter handgun on top of a nightstand in one of
two bedrooms. In this bedroom, Officer Fangman found a portfolio of documents
on the floor containing Appellant’s birth certificate, bank statements in Appellant’s
name, numerous receipts (some showing partial credit card numbers that
matched Appellant’s credit card number), and additional personal paperwork,
including several documents regarding Appellant’s Tarrant County community
supervision. Officer Fangman testified that it was very common for drug dealers
to have firearms because heroin is very expensive, and “[d]rug traffickers are —
are afraid of each other due to the fact that there’s often robberies involved
between drug dealers. Other drug dealers know that — that they have
something of value and there’s much money to be made selling heroin.” In the
kitchen, officers found a digital scale and small unused glassine bags. Sergeant
Morgan testified that, based on his training and experience, these types of bags
are used by drug dealers in Cincinnati to distribute small amounts of heroin and
cocaine, and Officer Perry testified that both drug traffickers and drug abusers
often possess these types of scales.
Appellant’s mother, Sandra McMorris, testified that Appellant is very
intelligent and bright, that she was upset that he got “caught up in this mess with
some of his friends,” and that “I really don’t believe that [Appellant] should serve
a lot of time, sir. He’s a good boy. He really is, and he’s been taking care of
me.” McMorris testified that she and Appellant bought junk vehicles, fixed them
4 up, and sold them for a “nice profit.” McMorris acknowledged on cross-
examination, however, that she knew that the sheriff’s department in Ohio had
seized approximately one hundred thousand dollars from different bank accounts
belonging to Appellant, noting that “some of those bank accounts, I know the
money came from those sales of vehicles because I assisted in selling some of
those vehicles here in the state of Texas.”
The trial court found six of the eight paragraphs in the petition true,
adjudicated Appellant guilty, and sentenced him to twenty years in prison. The
trial court found four new-offense allegations to be true, including in part that on
January 12–13, 2010, in Ohio (Hamilton County) Appellant (1) altered, destroyed,
concealed, or removed heroin to impair its value or availability as evidence in
such proceeding or investigation, knowing that an official proceeding or
investigation was in progress or was about to be or likely to be instituted
(allegation one); (2) offered to sell fourteen grams of heroin (allegation three); (3)
knowingly prepared for shipment, shipped, transported, delivered, or prepared for
distribution fourteen grams of heroin, when he knew or had reasonable cause to
believe that the heroin was intended for sale or resale by Appellant or another
person (allegation four); and (4) knowingly obtained, possessed or used fourteen
grams of heroin (allegation five). The trial court also found that Appellant violated
allegation seven by knowingly possessing a firearm away from his residence on
or about January 12, 2010.
III. Admissibility of Evidence
5 In his first issue, Appellant asserts that the trial court abused its discretion
by admitting and considering inadmissible hearsay. Appellant complains of the
trial court’s admitting (1) several receipts from drug and grocery stores in
California showing the purchase of Bounce dryer sheets, Super Glue, “tubes,”
and “bottles” in October and November 2009 (State’s Exhibits 1–4); (2)
Greyhound Bus Line receipts and itineraries with Appellant’s name printed on
them for travel on August 28 and 29, 2009, from Dallas to Memphis to Nashville
to Cincinnati, and on September 5 and 6, 2009, from Cincinnati to Nashville to
Dallas (State’s Exhibits 5–12); and (3) invoices with Appellant’s name printed on
them from the Quality Inn in Petaluma, California from October 7 to October 12,
2009 (State’s Exhibits 21–23). As the State notes, Appellant made hearsay
objections at various times to all of these exhibits.5
Appellant contends that the challenged receipts were admitted for the truth
of the matter asserted—i.e, that Appellant purchased these items—and that
Sergeant Morgan “then used that information to testify why the items [Appellant]
purchased were important to the drug trade.” Appellant maintains that the State
used the receipts to show he was a nationwide drug dealer and that this
evidence led directly to the trial court’s findings of “true” and the maximum
sentence of twenty years’ confinement. Appellant refers to the trial court’s
5 The State asserts, however, that the objections were untimely and that any error was cured when Sergeant Morgan testified to the contents of the exhibits without objection. Because we determine that the admission of the receipts was harmless, we do not address the State’s preservation arguments.
6 comment in adjudicating his guilt that, “You knew when you started dealing drugs
what you were doing” and the State’s closing argument that Appellant is “a drug
dealer. He’s now carried across three states. And I suspect, based on the
paperwork in front of you, that he’s been going coast to coast with this.”
A. Applicable Law
The State has the burden to prove by a preponderance of the evidence the
allegations in a petition to proceed to adjudication.6 See Rickels v. State, 202
S.W.3d 759, 763 (Tex. Crim. App. 2006); Miles v. State, 343 S.W.3d 908, 912
(Tex. App.—Fort Worth 2011, no pet.). This standard is met when the greater
weight of the credible evidence before the trial court supports a reasonable belief
that a condition of community supervision has been violated. Rickels, 202
S.W.3d at 763. Thus, our review of an order adjudicating guilt is limited to
determining whether the trial court abused its discretion by concluding that the
appellant violated a condition of his community supervision. Id.; Miles, 343
S.W.3d at 912. Proof of any one alleged violation is sufficient to support an
adjudication order. Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009);
Leach v. State, 170 S.W.3d 669, 672 (Tex. App.—Fort Worth 2005, pet. ref’d).
“To overturn a revocation order, a defendant must successfully challenge each
6 The decision to proceed to an adjudication of guilt and revoke deferred adjudication community supervision is reviewable in the same manner as a revocation of ordinary community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (West Supp. 2011); Cantu v. State, 339 S.W.3d 688, 691 (Tex. App.—Fort Worth 2011, no pet.).
7 finding on which the revocation is based.” Harris v. State, 160 S.W.3d 621, 626
(Tex. App.—Waco 2005, pet. dism’d) (citing Jones v State, 571 S.W.2d 191,
193–94 (Tex. Crim. App. [Panel Op.] 1978)). Once a trial court proceeds to
adjudication of guilt previously deferred, it is restricted in the sentence it imposes
only by the relevant statutory limits. Von Schounmacher v. State, 5 S.W.3d 221,
223 (Tex. Crim. App. 1999); Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort
Worth 2009, pet. ref’d) (holding that punishment imposed within statutory limits is
generally not subject to excessiveness challenge).
B. Analysis
Assuming without deciding that the trial court erred by admitting the
challenged receipts, the error was harmless because the remainder of the
admissible evidence was sufficient to support the trial court’s decision to revoke
Appellant’s community supervision, adjudicate his guilt, and sentence him to
twenty years in prison. See Tex. R. App. P. 44.2(b) (providing that any non-
constitutional error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded); cf. Clay v. State, No. 02-10-00490-CR,
2012 WL 503513, at *9 (Tex. App.—Fort Worth Feb. 16, 2012, no pet. h.).
(Dauphinot, J., dissenting) (“Because admissible evidence did not otherwise
satisfy the State’s burden of proof, I would hold harmful the trial court’s error in
admitting the documents purporting to come from the Louisiana community
supervision department and the testimony about them and further hold that the
trial court abused its discretion by adjudicating Appellant’s guilt.”).
8 For example, in support of its first allegation—that Appellant tampered with
evidence so that it would not be available as evidence—and its fifth allegation—
that Appellant possessed fourteen grams of heroin—the State presented Officer
Perry’s testimony that Appellant attempted to hide a package (verified by a
chemist to be heroin) in Officer Perry’s squad car that had not been in the car
prior to Appellant’s arrest. In support of its third allegation—that Appellant
offered to sell fourteen grams of heroin—the State presented tape recorded
conversations between Appellant and a confidential informant. These same
recorded conversations also supported the State’s fourth allegation—that
Appellant prepared heroin for shipment, transport, or distribution—as did the
following testimony:
A. [Sergeant Morgan]: The CI made it very clear on the phone calls that we played that he needed the drugs because he had clients that were wanting to purchase from him.
Q. [State]: This wasn’t personal use. He wanted to resell them?
A. Oh, absolutely. And I think at one point in the recorded calls that [Appellant] wanted him to hurry up and distribute that, collect his money, because he had a bigger load — or I believe he called it “a boat” coming in the next day.
Q. Is it clear from the phone calls that you heard and [Appellant] talking that he was knowingly prepared for shipment, shipped, transported or delivered or prepared for distribution a Schedule I controlled substance; to-wit, heroin, and he knew or had reason to — cause to believe that the controlled substance was intended for sell or resell [sic] by him or by somebody else?
A. Absolutely.
9 In support of its seventh allegation—that Appellant violated his community
supervision by knowingly possessing a firearm away from his residence on or
about January 12, 2010—the State presented evidence that one of the two guns
found in the residence was in a bedroom containing Appellant’s birth certificate
and his community supervision paperwork. Thus, the trial court’s adjudication
order is supported by admissible evidence that Appellant violated several of the
conditions of his community supervision, and Appellant does not specifically
challenge the trial court’s findings as to these allegations. See Smith, 286
S.W.3d at 342; Harris, 160 S.W.3d at 626. Thus, the record does not support
Appellant’s assertion that the challenged receipts led directly to the finding of
“true” to the State’s allegations.
Additionally, the record does not support Appellant’s assertion that the
challenged receipts and associated testimony—which he asserts were “the only
evidence” the State could produce showing he went to California, purchased
masking agents, or purchased bins to transport the drugs for distribution—led to
the imposition of the maximum sentence. Appellant faced a possible sentence of
twenty years’ imprisonment for the second-degree aggravated assault to which
he pleaded guilty, and the trial court assessed the maximum punishment. See
Tex. Penal Code Ann. ' 12.33(a) (West 2011). Generally, as long as a sentence
is within the statutory range of punishment and has a factual basis in the record,
it will not be disturbed on appeal. Jackson v. State, 680 S.W.2d 809, 814 (Tex.
Crim. App. 1984); see Freeman v. State, No. 02-09-00093-CR, 2009 WL
10 4755169, at *3 (Tex. App.—Fort Worth Dec. 10, 2009, pet. ref’d) (mem. op., not
designated for publication).
In adjudicating Appellant’s guilt and sentencing him, the trial court stated,
[I]’m going to be very blunt with you. You knew what you were signing up for when you went onto probation. You knew when you started dealing drugs what you were doing. You knew the danger that you were facing by going out there and engaging in that behavior.
The .50 caliber gun, the gun in the house, the paperwork, the traveling, clearly indicates that there is drug dealing on a level that is not normally seen around here. It’s seen at a federal level, which they’re going to probably deal with you there.[7]
[I]n terms of what we do here, in terms of what we expect you to do when you signed up, when you pled guilty to aggravated assault with a deadly weapon, that is all true.
....
You made this choice intelligently, voluntarily on your part and this is our decision here with regard to your behavior here.
As demonstrated above, the State introduced substantial evidence that
Appellant was dealing drugs on a fairly high level (at a minimum in Ohio) while on
community supervision. While the trial court cited Appellant’s traveling as a part
of its consideration, the totality of the evidence supports the trial court’s
sentence. Moreover, Sergeant Morgan provided unobjected-to testimony that
Appellant travelled to and made purchases related to his drug dealing in
7 Sergeant Morgan testified that his narcotics task force worked on local and federal cases. In closing arguments, Appellant’s counsel argued to the court, “We also know that once he’s done here, there’s a hold on him in Ohio . . . he’s going to be going there doing — doing some sort of federal time.”
11 California.8 For instance, he testified without objection that “[t]he receipts
became important because it gave us the travel receipts for the actual location at
the time that the receipts — the — the part of the country that the receipts were
taken at the time, which in this particular case we’re talking about California.”
When asked whether the purchases and travel to California were important,
Sergeant Morgan testified without objection, “Absolutely. . . . Because these are
items that are consistent with our intel of someone that is distributing narcotics
across the country.” Sergeant Morgan also testified without objection that he
found receipts from General Nutrition Center (GNC) for big containers of
bodybuilder powders and substances in the residence and that he also found
bodybuilding substances consistent with the GNC receipts. Without objection,
Sergeant Morgan explained that “[t]he powder would be removed from the
container, a small portion, the narcotics placed inside, the Super Glue would be
used to seal the — the label to look unaltered if it was inspected, sealed back up
and shipped across the country. The dryer sheets are commonly used to mask
agents — as a masking agent to mask the odor of narcotic-detecting dogs.”
8 See Chamberlain v. State, 998 S.W.2d 230, 235 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 1082 (2000) (overruling issue concerning admission of trial exhibit because sponsoring witness testified about the information contained in the exhibit without objection); see also Aranda v. State, No. 13-03-00302-CR, 2004 WL 5357628, at *2 (Tex. App.—Corpus Christi Nov. 18, 2004, no pet.) (mem. op., not designated for publication) (holding any error in admission of hearsay exhibit harmless because same information subsequently introduced without objection).
12 Because the trial court’s sentence did not exceed the punishment range,
and because it had a factual basis in the record, we overrule Appellant’s first
issue. See Benjamin v. State, No. 14-08-01012-CR, 2010 WL 307921, at *3
(Tex. App.—Houston [14th Dist.] Jan. 28, 2010, no pet.) (mem. op., not
designated for publication) (considering that “Appellant’s behavior while he was
on community supervision—continuing his drug use, committing burglary, and
failing to pay his court-ordered fees—indicates a complete disregard for the
terms of his community supervision” in upholding trial court’s imposition of
sentence); see also Smith, 286 S.W.3d at 344 (“[T]he decision of what
punishment to assess after adjudicating the defendant guilty is a purely
normative process, not intrinsically factbound, and is left to the unfettered
discretion of the trial judge.”).
IV. Assistance of Counsel
In his second issue, Appellant asserts that his counsel was ineffective
during closing argument by “admit[ting] the primary issue in the case;” i.e., that
Appellant possessed heroin. Appellant asserts that this admission “forced the
Trial Court to find all of the State’s allegations concerning possession and
delivery of drugs and weapons to be true” and that the outcome of the case
would have been different if counsel had not admitted his guilt. We disagree.
To establish ineffective assistance of counsel Appellant must show by a
preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
13 probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Appellant has
the burden to establish both of these prongs by a preponderance of the
evidence, and a failure to make either showing defeats an ineffectiveness claim.
Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). We presume that
counsel’s conduct falls within the wide range of reasonable professional
assistance, and we will find counsel’s performance deficient only if the conduct is
so outrageous that no competent attorney would have engaged in it. Andrews v.
State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).
After Appellant pleaded “not true” to the State’s first allegation, the
prosecutor interjected that Appellant had previously represented he would plead
true to the allegations and that therefore the State had not scheduled the Ohio
chemist (who tested the confiscated drugs) for the hearing. The prosecutor
explained that he would need a continuance if Appellant persisted in contesting
the allegations. Appellant’s counsel then recounted his statements to the
prosecutor that, “if you’re bringing one [witness], bring them all” and “we’ll be
willing to plead true if — if you’d offer us something.” Counsel also stated,
“[W]hen the offer was 15 [years], I said, bring them all.” When the trial court
asked Appellant’s counsel whether he was disputing that the material seized in
the Ohio patrol car was contraband, counsel stated, “Yeah . . . we’re disputing
14 everything. . . [W]e tried to make an agreement beforehand, and when it was
clear there was never going to be anything that would — I would consider a
reasonable offer for any court in this courthouse, I said, bring [on the witnesses].”
The trial court then proceeded with the hearing, noting that the State could
produce the chemist at a later time. Throughout the hearing, Appellant’s counsel
appeared to vigorously challenge the State’s evidence and defend Appellant’s
interests. After the State presented several witnesses, the trial court granted the
State’s motion for continuance. A month later, the hearing resumed, and
Appellant’s counsel (with Appellant’s express agreement) stipulated to the
Hamilton County, Ohio, lab report, which provided that the “brown solid material”
contained in a plastic bag and submitted for testing in the instant case was heroin
and weighed 13.98 grams. The State subsequently rested its case, and
Appellant’s counsel stated he would present mitigation testimony.9 Appellant’s
mother, girlfriend, and cousin testified. In closing argument, Appellant’s counsel
argued to the trial court (with the challenged portion of the argument italicized)
that,
It was [Appellant’s] intention all along to — to plead true to — to the possession. And once this — once this hearing got started — I
9 With the agreement of the parties, the trial court heard both adjudication and mitigation evidence before ruling and assessing punishment in a single proclamation. See Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999) (holding that defendant does not have absolute right to separate punishment hearing but must have opportunity to present mitigating evidence if that right was not afforded during adjudication). Thus, Appellant’s counsel was addressing both adjudication and punishment in his closing argument.
15 wasn’t sure that he made — we had a tape with maybe his voice on it with no one setting any kind [of] foundation for it of the — the person who made the call and — and started this — and I say, “entrapment.” I don’t mean the legal reason but — the legal version — but to talk to him in — into this deal — and is it him and I never [c]ould hear the word “heroin.” I never hear dollar amounts and they said, oh, he’s using code, but I didn’t think that code’s explained sufficiently, and I couldn’t understand what they were saying, anyway.
But at — at [Appellant’s] request, he said — he said, [counsel], it was me, of course, it was me. And that — that’s what I was doing. He doesn’t want me to — to — to take that route where I’m contesting this whole thing.
****
[Defense Counsel]: So since [Appellant is] — at his request, he’s — he’s admitting [to] his possession of it, I’d like to draw your attention to —
THE COURT: Okay, now, let me —let me just stop you there. Are you saying he wishes to change his plea to true?
[Defense Counsel]: No. This is — this is just my argument.
THE COURT: Well, if you want to have — if you want to articulate that he wants to — he’s pleading true or he’s admitting that, that’s one thing. But if you’re — if he isn’t willing to do that, I don’t think you can argue that, can you?
[Defense Counsel]: I don’t know.
THE COURT: Okay. I’ll take whatever you say under advisement.
[Defense Counsel]: I think it’s —okay. I think it is true and I think it will be true.
[Emphasis added.] Immediately thereafter, Appellant personally addressed the
trial court (with its permission):
16 [W]hen I did get arrested for this charge in Ohio, you know, my whole thing was, you know, I need some help.
[I] know I hurt my family and hurt myself, you know. I mean, I don’t have any intentions on, you know, playing any games.
I come at the mercy of the Court and I’m just petitioning for leniency. I really was trying to get some drug rehabilitation. I never had drug rehab, you know. I’ve been using drugs since high school, you know. I kicked the marijuana but I’m going to need some help with the heroin because it’s not, you know, it’s not as easy as I thought, you know.
Relying on Long v. State and Hutchinson v. State, Appellant asserts that a
“stipulation or argument which destroys appellant’s only defense cannot be
classified as ‘trial strategy.’” See Long, 764 S.W.2d 30, 31 (Tex. App.—San
Antonio 1989, pet. ref’d); Hutchinson, 663 S.W.2d 610, 613–15 (Tex. App.—
Houston [1st Dist.] 1983, pet. ref’d). In Long, trial counsel presented an insanity
defense but then stipulated to a police report that showed that Long had become
voluntarily intoxicated, thereby annulling his defense strategy. 764 S.W.2d at 31.
The trial court then “expressly based its rejection of appellant’s defense on the
damaging stipulated statement regarding voluntary intoxication.” Id. The
Hutchinson case involved a jury trial in which defense counsel presented no
evidence in support of the appellant’s guilt and then effectively “confessed the
guilt of his client” by stating in closing argument, “That’s the way the system
works. The prosecutor brings you the evidence against him. I bring you
whatever evidence I have in his favor.” 663 S.W.2d at 613 (finding ineffective
17 assistance of counsel because it was “obvious from the record that appellant’s
counsel never intended to present any defense to the drug charge and that the
plea of not guilty was never seriously urged”).
Unlike in Long and Hutchinson, the record in the instant case does not
support Appellant’s ineffective assistance claim. In personally addressing the
trial court, Appellant made admissions similar to the one he now criticizes his
counsel for making. Notably, both counsel’s and Appellant’s admissions appear
to be strategic. The record indicates that Appellant and his counsel grappled
with how best to approach the adjudication hearing and that during the month-
long break they determined that the best strategy was to request leniency in the
face of considerable evidence that Appellant violated several of the conditions
and terms of his community supervision, including that he committed drug-related
offenses in Ohio for which he was arrested and charged by indictment. See
Wiley v. State, No. 13-11-00130-CR, 2012 WL 112805, at *2–4 (Tex. App.—
Corpus Christi Jan. 12, 2012, no pet.) (mem. op., not designated for publication)
(construing counsel’s argument that Wiley had “not committed the crime of the
century” as a request for lenience in the face of what appeared to be
overwhelming evidence of her violations).
Moreover, the record indicates that counsel did not abandon his role as an
advocate. Indeed, he argued that the State had not proven the seventh
allegation—that Appellant knowingly possessed a firearm—or the eighth
allegation—that Appellant failed to complete his minimum monthly number of
18 hours of community service. The trial court found the eighth allegation to be “not
true,” and also found “not true” the sixth allegation—that Appellant failed to avoid
injurious or vicious habits on or about January 12, 2010. Counsel also made
several arguments regarding why the trial court should sentence Appellant in the
lower half of the punishment range. Without additional explanation, we cannot
conclude trial counsel pursued an unsound trial strategy. See Thompson, 9
S.W.3d at 813–14. Thus, Appellant fails to rebut the presumption that counsel
made all significant decisions in the exercise of reasonable professional
judgment; therefore, he fails to show that trial counsel’s performance fell below
an objective standard of reasonableness. See Strickland, 466 U.S. at 687–88,
104 S. Ct. at 2064.
Additionally, the record does not show that the outcome would have been
different had counsel not made the challenged argument. Despite counsel’s
admission, the State proved by a preponderance of the evidence (separate and
apart from any admissions by Appellant’s counsel) that Appellant violated several
of the terms and conditions of his community supervision. Further, in revoking
Appellant’s community supervision and imposing a twenty-year sentence, the
trial court emphasized its concern about Appellant’s drug dealing, of which there
was an abundance of evidence. Based on the record before us, we cannot say
that the outcome of the proceeding would have been different if counsel had not
admitted to Appellant’s heroin possession. We overrule Appellant’s second
issue.
19 V. Conclusion
Having overruled Appellant’s two issues, we affirm the trial court’s
judgment.
ANNE GARDNER JUSTICE
PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: May 3, 2012