No. 14-08-00389-CR
Opinion filed April 7, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 262nd District Court Harris County, Texas, Trial Court Cause No. 1114995.
Panel consists of Justices YATES, GUZMAN, and SULLIVAN.
KENT C. SULLIVAN, Justice.
After appellant, Robert Michael Francois, allegedly violated several conditions of his court-ordered community supervision, the State filed a motion to adjudicate guilt. Following a hearing, the trial court found the allegations in the motion to be true, adjudicated appellant's guilt, and sentenced him to confinement for twenty-five years. On appeal, appellant asserts his counsel was ineffective at the adjudication hearing by failing to present the testimony of a material witness and by not offering mitigating evidence during punishment. However, appellant has not shown that the result of the proceeding would have been different but for the allegedly deficient representation. Therefore, we affirm.
By statutory amendment, the legislature substituted the term "community supervision" for "probation." See Act of May 30, 1999, 76th Leg., R.S., ch. 1236, § 1, 1999 Tex. Gen. Laws 4279.
BACKGROUND
On September 13, 2007, appellant pleaded guilty to aggravated robbery and was sentenced to ten years' deferred adjudication and community supervision. On April 7, 2008, the State filed a motion to adjudicate guilt, alleging that he violated multiple conditions of his community supervision, including: (1) compliance with the laws of the State of Texas;
(2) avoiding persons or places of disreputable or harmful character;
(3) providing proof of employment during March 2008;
(4) paying mandatory supervision fees, court costs, laboratory fees, and restitution;
(5) making payment to Crime Stoppers;
(6) submitting to an alcohol and drug evaluation before December 23, 2007; and
(7) writing an acceptable letter to the surviving victim of his crime.
At the hearing on the State's motion, Janie Hernandez, appellant's community supervision officer, testified that appellant violated all of the conditions listed above. The trial court found the allegations in the State's motion to adjudicate guilt true and found appellant guilty as originally charged. He was sentenced to twenty-five years' confinement in the Texas Department of Criminal Justice, Institutional Division. On appeal, appellant contends he received ineffective assistance of counsel because his attorney failed to present the testimony of a material witness and failed to offer mitigating evidence during the punishment phase. ANALYSIS
Standard of Review
We apply a two-pronged test to ineffective-assistance claims. See Strickland v. Washington, 466 U.S. 668, 687 (1984). First, appellant must prove that counsel's performance was deficient, falling below an objective standard of reasonableness. See id. at 687-88. Second, appellant must show that counsel's deficient performance prejudiced his defense. See id. at 687. This element requires appellant to demonstrate a reasonable probability that, but for the allegedly deficient representation, the result of the proceeding would have been different. See id. at 694. The appellant bears the burden of proving ineffective assistance by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Failure to Present a Witness
In his first issue, appellant asserts that his trial counsel was ineffective because he failed to subpoena and present the testimony of Bryan Carter, appellant's stepfather, during the adjudication stage. Counsel called Carter to testify at two different times during the adjudication stage, but Carter was not in the courtroom. Instead, the trial court accepted a proffer from counsel explaining that, had Carter been present, he would have testified that appellant did not commit an offense in violation of the laws of the State of Texas, that is, the first of the seven above-listed violations. However, appellant has not challenged the trial court's finding that he violated six other community-supervision conditions. Therefore, he has not shown that, had his attorney procured the testimony in question, the result of the adjudication hearing would have been different. Absent a showing of both counsel's deficient performance and resulting prejudice, we cannot conclude that a defendant's conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005) (citing Strickland, 466 U.S. at 687). If, as here, an appellant fails to meet the prejudice prong, the reviewing court need not address the question of counsel's performance. Hagens v. State, 979 S.W.2d 788, 793 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd). Therefore, we overrule appellant's first issue. No Mitigating Evidence at Punishment In his second issue, appellant argues that he received ineffective assistance because his counsel did not offer mitigating evidence during the punishment phase following the adjudication of guilt. He contends that his family was available to provide mitigating evidence, but they were not called to testify. However, an ineffective assistance claim can be premised upon an attorney's failure to present witnesses only if the appellant can show that the witnesses were available and that their testimony would have benefitted him. See Ex parte McFarland, 163 S.W.3d 743, 758 (Tex.Crim.App. 2005). Appellant has not made this showing. In Garza v. State, the Court of Criminal Appeals rejected a similar ineffective assistance argument because the reasons for counsel's decision not to put on mitigating evidence did not appear in the record. 213 S.W.3d 338, 348 (Tex.Crim.App. 2007). We will sustain an allegation of ineffective assistance of counsel only if firmly founded and affirmatively demonstrated in the appellate record. Stephens v. State, 15 S.W.3d 278, 279 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996)). However, the record on direct appeal is usually inadequate to overcome the presumption and show that counsel's conduct fell below an objectively reasonable standard of performance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Here, as in Garza, the reasons for counsel's actions do not appear in the record. See Garza, 213 S.W.3d at 348. That is, nothing in the record demonstrates that appellant's family, although present at the hearing, would have offered testimony beneficial to him. See Rangel v. State, 972 S.W.2d 827, 838-39 (Tex.App.-Corpus Christi 1998, pet. ref'd). Moreover, because counsel's reasons for not presenting the family's testimony as mitigating evidence at the punishment phase do not appear in the record, we must defer to counsel's decision and deny relief. See Garza, 213 S.W.3d at 348. After all, our scrutiny of counsel's performance must be highly deferential, and we are to presume that trial counsel rendered effective assistance. See Strickland, 466 U.S. at 689; Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). Therefore, appellant must overcome the strong presumption that, under the circumstances, his attorney's action might be considered sound trial strategy. See Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005). Since he has not done so, we overrule appellant's second issue. CONCLUSION
Finding no merit in the issues presented, we affirm.