Opinion
04-22-00147-CR
01-04-2023
Daniel Wayne MAHAN, Appellant v. The STATE of Texas, Appellee
Do not publish
From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 2020CR6955 Honorable Michael E. Mery, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Irene Rios, Justice Liza A. Rodriguez, Justice
MEMORANDUM OPINION
Liza A. Rodriguez, Justice
Daniel Wayne Mahan appeals from the trial court's judgment revoking his community supervision. We affirm.
Background
In a companion cause, Trial Court Cause No. 2021CR3856W, Mahan was alleged to have committed the offense of burglary of a building with the intent to commit theft on April 12, 2020. In the underlying cause, Trial Court Cause No. 2020CR6955, Mahan was alleged to have evaded arrest/detention with a vehicle on April 13, 2020. The indictment in Trial Court Cause No. 2020CR6955 also included a habitual offender enhancement allegation.
On April 29, 2021, Mahan entered into a plea-bargain agreement with the State in both causes. In Trial Court Cause No. 2021CR3856W, he agreed to a cap of two years state jail to run concurrently with 2020CR6955 and for other causes to be taken into consideration and dismissed. In Trial Court Cause No. 2020CR6955, he agreed to a cap of 15 years imprisonment to run concurrently with 2021CR3856W and for other causes to be taken into consideration and dismissed. On July 22, 2021, he was sentenced in both cases in accordance with his plea-bargain agreements. In Trial Court Cause No. 2021 CR 3856W, he was sentenced to two years in state jail and a fine of $500; his sentence was then suspended, and he was placed on community supervision for five years. In Trial Court Cause No. 2020CR6955, he was sentenced to ten years imprisonment; his sentence was then suspended, and he was placed on community supervision for ten years.
On October 19, 2021, the State filed a motion to revoke Mahan's community supervision in both causes. On January 31, 2022, the trial court heard the State's revocation motions in both causes. At the hearing, Mahan pled true to having violated Condition No. 2 of his community supervision in both causes by illegally using a controlled substance, namely methamphetamine, on September 2, 2021. The trial court then revoked Mahan's community supervision in both causes. In Trial Court Cause No. 2021CR3856W, Mahan was sentenced to two years confinement in the state jail. In Trial Court Cause No. 2020CR6955, Mahan was sentenced to nine years imprisonment. His sentences were ordered to run concurrently.
Mahan then appealed the trial court's judgments in both causes.
Discussion
In both this appeal and Appeal No. 04-22-00146-CR, Mahan argues his trial court counsel was ineffective at his revocation hearing by not asking for a continuance in order to have the Mentally Impaired Offender Facility ("MIOF") screening information available to the trial court so that it could exercise its discretion in determining whether to continue his community supervision. We measure a claim of ineffective assistance of counsel against the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986) (applying Strickland test). A person claiming that counsel was ineffective must prove, by a preponderance of the evidence, that (1) counsel's performance was deficient, falling below an "objective standard of reasonableness," and (2) the deficient performance prejudiced the defense such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012) (citation omitted). Further, we "indulge in a strong presumption that counsel's conduct fell within the wide range of reasonable assistance and that the challenged action might be considered sound trial strategy." Id. (citation omitted). "The mere fact that another attorney might have pursued a different tactic at trial does not suffice to prove a claim of ineffective assistance of counsel." Id.
"The Strickland test is judged by the 'totality of the representation,' not by counsel's isolated acts or omissions, and the test is applied from the viewpoint of an attorney at the time he acted, not through 20/20 hindsight." Id. Thus, "[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). "Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional." Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). "[R]arely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation." Id. "[I]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." Id. (quoting Thompson, 9 S.W.3d at 813). "Trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (citation omitted). "If trial counsel is not given that opportunity, then the appellate court should not find deficient performance unless the challenged conduct was so outrageous that no competent attorney would have engaged in it." Id. (citation omitted).
Here, Mahan complains about his trial counsel's failure to request a continuance in order to obtain the results of a MIOF screening. However, the record is silent regarding trial counsel's strategy in not requesting a continuance. Further, there is nothing in the record to indicate whether the MIOF screening information would have been beneficial to Mahan's defense. The record simply does not reflect that defense counsel's conduct was so outrageous that no competent attorney would have engaged in it. See id. Therefore, Mahan failed to meet his burden under Strickland.
Conclusion
Having determined that Mahan's sole issue is without merit, we affirm the judgment of the trial court.