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explaining that because defendant "has not challenged these other grounds, and because the record supports them, we cannot conclude that the trial court abused its discretion in revoking [the defendant]'s community supervision and adjudicating his guilt"
Summary of this case from Kavanaugh v. StateOpinion
NO. 03-17-00448-CR
05-15-2018
Curtis Toliver, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
NO. D-1-DC-09-300664 , HONORABLE WILFORD FLOWERS, JUDGE PRESIDING MEMORANDUM OPINION
In 2009, Curtis Toliver pleaded guilty to the charge of aggravated assault with a deadly weapon. See Tex. Penal Code § 22.02(a)(2). The trial court deferred a finding of guilt and placed Toliver on community supervision for seven years. The State later filed a motion to adjudicate guilt, alleging that Toliver failed to pay several fees, failed to pay a fine, failed to perform the required community service hours, and committed a subsequent offence of aggravated assault with a deadly weapon. Toliver pleaded not true to these allegations. Following a hearing, the trial court found various allegations true, revoked Toliver's community supervision, adjudicated him guilty, and sentenced him to 20 years in prison. On appeal, Toliver contends that the trial court erred in not holding a hearing concerning whether his trial counsel had a conflict of interest, that he received ineffective assistance of counsel because his trial counsel had a conflict of interest, that the trial court erred in including an affirmative deadly-weapon finding in the written judgment, that he was denied a fair trial because the State did not disclose exculpatory and mitigating evidence to the trial court, and that he received ineffective assistance of counsel in that his trial counsel did not make appropriate use of the exculpatory and mitigating evidence. We will affirm the trial court's judgment adjudicating guilt.
STANDARD OF REVIEW
We review the decision to adjudicate guilt in the same manner as a community-supervision revocation in which an adjudication of guilt was not deferred. See Leonard v. State, 385 S.W.3d 570, 571 n.1 (Tex. Crim. App. 2012). The State must prove that the defendant violated a condition of probation by a preponderance of the evidence. See Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). We review a trial court's decision to revoke community supervision for an abuse of the trial court's discretion, see Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006), viewing the evidence in the light most favorable to the trial court's decision, see Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). Proof by a preponderance of the evidence of a single violation of a condition of community supervision is sufficient to support revocation. See Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009) ("We have long held that 'one sufficient ground for revocation would support the trial court's order revoking' community supervision.") (quoting Jones v. State, 571 S.W.2d 191, 193 (Tex. Crim. App. 1978)); Figueroa v. State, No. 03-16-00805-CR, 2017 WL 2857139, at *3 (Tex. App.—Austin June 29, 2017, no pet.) (mem. op., not designated for publication) ("A trial court's decision to revoke community supervision must be supported by a preponderance of the evidence . . . . Proof of a single violation of a condition of community supervision is sufficient to support revocation.").
DISCUSSION
Conflict of Interest
In his first two points of error, Toliver contends that his trial counsel had a conflict of interest because she had previously represented some of the individuals involved in the aggravated assault that was one of the alleged violations of Toliver's conditions of community supervision. Toliver argues that the trial court erred in not holding a hearing concerning the alleged conflict and that he received ineffective assistance of counsel because of this conflict. He further argues that the trial court's failure to hold a hearing entitles him to "automatic reversal."
The State, however, alleged other violations of Toliver's conditions of community supervision in addition to the commission of a new offense, and the trial court found other allegations to be true both orally at the conclusion of the hearing and in the written judgment. These allegations included, for example, Toliver's failure to pay a fine and various fees. Toliver has not challenged those findings, and, as discussed above, proof of a single violation is sufficient to support revocation. See Smith, 286 S.W.3d at 342; see also Figueroa, 2017 WL 2857139, at *3 ("[T]o prevail on appeal, a defendant must successfully challenge all of the findings that support the court's revocation decision."). Here, a probation officer testified concerning the unpaid fine and fees. Because Toliver has not challenged these other grounds, and because the record supports them, we cannot conclude that the trial court abused its discretion in revoking Toliver's community supervision and adjudicating his guilt, regardless of whether the trial court erred in finding true the allegation that Toliver violated the terms of his community supervision by committing a subsequent offense. Accordingly, we overrule Toliver's first two points of error.
Toliver's appellate brief discusses the alleged conflict of interest only in connection with the allegation of the new offense of aggravated assault with a deadly weapon. He argues, for example, that his attorney's conflict influenced her decisions about what witnesses to the aggravated assault to subpoena or how to question them. He never asserts that the alleged conflict led the trial court to improperly conclude that he had committed the other violations and does not explain how that could be. To the extent that Toliver is arguing that the alleged conflict was somehow relevant to all of the State's allegations or to sentencing, we conclude that he has not adequately briefed those issues. See Tex. R. App. P. 38.1(i). Moreover, we note that the cases that Toliver relies on for the proposition that he is entitled to an "automatic reversal" because his trial attorney had previously represented individuals involved in the alleged aggravated assault do not support his argument. Holloway v. Arkansas, 435 U.S. 475, 482 (1978), for example, involved the joint representation of codefendants. Here, Toliver's trial attorney did not represent both Toliver and a codefendant—indeed, the record does not indicate that Toliver had a codefendant. Moreover, in cases like Holloway, the alleged conflict of interest was tied to the entire case; here, the alleged conflict was relevant, if at all, only to the allegations of the new offense of aggravated assault. Therefore, even if we were to conclude that Toliver's trial counsel provided ineffective assistance in not addressing her alleged conflict, we would also conclude that Toliver has failed to establish that he was prejudiced by the conflict with respect to the State's other allegations. See Mickens v. Taylor, 535 U.S. 162, 172 n.5 (2002) ("An 'actual conflict,' for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance."); id. at 173-74 ("Since this was not a case in which (as in Holloway) counsel protested his inability simultaneously to represent multiple defendants; and since the trial court's failure to make the Sullivan-mandated inquiry does not reduce the petitioner's burden of proof; it was at least necessary, to void the conviction, for petitioner to establish that the conflict of interest adversely affected his counsel's performance."); Malek v. State, No. 03-10-00534-CR, 2012 WL 370551, at *6 (Tex. App.—Austin Feb. 1, 2012, pet. ref'd) (mem. op., not designated for publication) ("An appellant cannot obtain a reversal on appeal unless he shows that his attorney was operating under an actual conflict of interest that adversely affected counsel's performance.").
Deadly-Weapon Finding
In his third point of error, Toliver contends that the trial court "erred in issuing a judgment containing an affirmative finding of a deadly weapon when no such findings of fact had ever been made."
The indictment of the offense for which the trial court placed Toliver on community supervision alleged that Toliver "did then and there intentionally or knowingly threaten [the complainant] with imminent bodily injury and did then and there use or exhibit a deadly weapon, to-wit: a firearm, during the commission of said assault." Toliver pleaded guilty to the charge of aggravated assault with a deadly weapon. At the revocation hearing, the trial court stated, "Mr. Toliver, I find you guilty of aggravated assault, since this was deferred, with a deadly weapon, a second-degree felony." As our sister court has explained, a defendant's confession to the use of a deadly weapon supports a deadly-weapon finding:
The record establishes that appellant freely, intentionally, knowingly, and voluntarily confessed to using or exhibiting the deadly weapon during the commission of the offense. A presumption of truthfulness and regularity applies to documents filed in the trial court. Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984). Appellant's judicial confession is sufficient evidence to show that he used a deadly weapon, and the record need not otherwise provide proof.Keller v. State, 125 S.W.3d 600, 605 (Tex. App.—Houston [1st Dist.] 2003, pet. dism'd); see Lackey v. State, No. 01-16-00986-CR, 2017 WL 6043677, at *3 (Tex. App.—Houston [1st Dist.] Dec. 7, 2017, no pet.) (mem. op., not designated for publication) ("A judicial confession is sufficient evidence to show that a defendant used a deadly weapon, and the record need not otherwise provide proof."); Burns v. State, No. 05-15-00971-CR, 2016 WL 2903589, at *2 (Tex. App.—Dallas May 12, 2016, no pet.) (mem. op., not designated for publication) (same); Clark v. State, No. 06-13-00156-CR, 2014 WL 2152005, at *2 (Tex. App.—Texarkana May 21, 2014, no pet.) (mem. op., not designated for publication) ("A written judicial confession that a deadly weapon was used or exhibited is sufficient to support a deadly weapon finding, regardless of whether additional evidence was presented at trial.").
Because the record before us indicates that Toliver pleaded guilty to aggravated assault with a deadly weapon and that the trial court found him guilty of that offense, we conclude that the trial court did not err in making an affirmative deadly-weapon finding in the written judgment. Accordingly, we overrule Toliver's third point of error.
Lab Report
In his fourth point of error, Toliver contends that he "was denied a fair trial because the State did not make known to the tribunal exculpatory and mitigating evidence in its possession, namely, a lab report that found the gun was so rusty that it was not capable of firing a projectile at the time of its testing." According to Toliver, the prosecution violated the Texas Disciplinary Rules of Professional Conduct, rule 3.09, by failing to bring this lab report to the trial court's attention. (Toliver concedes that the State made the report available to his trial counsel.)
Even assuming, without deciding, that the State's failure to bring this report to the trial court's attention violated disciplinary rules and that this violation could be reversible error with respect to the trial court's finding that Toliver committed the alleged new offense, we would still affirm the trial court's order on the basis of its findings concerning the State's other allegations, which Toliver has not challenged on appeal. See supra and Smith, 286 S.W.3d at 342; Figueroa, 2017 WL 2857139, at *3. Accordingly, we overrule Toliver's fourth point of error.
Perhaps anticipating the problem that the State's remaining allegations would be for his argument, Toliver's appellate brief refers to the allegation of the new offense as "the last of the allegations in the Motion to Revoke, (and according to the probation officer that testified, the only allegation that really mattered . . . .)." Later in his brief, Toliver argues, "Furthermore, since the presence of a gun was central to the State's motion to revoke, i.e[.,] 'the only allegation that really mattered' (RR. V. 2 p. 22, 1. 15, to RR. V.2, p. 23, 1. 7), also legally an element of the alleged subsequent offense of 'Aggravated Assault by Threat with a Deadly Weapon' in the motion to revoke, it is material to the State's case." We are unable to find the quotation that Toliver provides ("the only allegation that really mattered") anywhere in the record before us, either at the location indicated or at any other location. Moreover, the citation that Toliver provides does not support his assertion that the State essentially conceded that the allegation of the new offense was the only allegation that mattered. Instead, at the record location indicated, Toliver's probation officer merely testified that she would not have "filed on [Toliver]" on the basis of his being behind on his community service "if he hadn't had another violation." There is no discussion of the alleged new offense and no assertion by the State that the other allegations did not matter, as Toliver suggests in his brief. See Tex. Disciplinary R. Prof'l Conduct 3.03, reprinted in Tex. Gov't Code, tit. 2, subtit. G app. A (Vernon 2013) (Tex. State Bar R. art. X, § 9); see also McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 436 (1988) ("Neither paid nor appointed counsel may deliberately mislead the court with respect to either the facts or the law . . . .").
In a related fifth point of error, Toliver contends that he received ineffective assistance of counsel in that his trial attorney "did not object to the introduction of firearm evidence, did not cross examine the officer with the firearm lab report, and did not seek to introduce the firearm lab report into evidence." Toliver first argues that this alleged ineffective assistance of counsel harmed him because it led to the trial court improperly finding that he had committed the new offense. As discussed above, however, Toliver has not challenged the trial court's findings concerning the State's other revocation allegations. Accordingly, we overrule Toliver's fifth point of error as it relates to the trial court's decision to revoke his community supervision and adjudicate his guilt.
Toliver also argues that this alleged ineffective assistance harmed him at the sentencing phase of the revocation hearing. According to Toliver, if his attorney had made proper use of the lab report showing that the gun was inoperable until cleaned, the trial court likely would have concluded that the State had failed to prove its allegation of the new offense, and therefore Toliver would have "received a sentence shorter than the maximum, or even been placed on a regular probation."
We apply the two-prong Strickland v. Washington standard to Toliver's claim of ineffective assistance of counsel at the punishment phase of the hearing. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) (applying Strickland to noncapital sentencing proceedings). To prevail under Strickland, an appellant must demonstrate by a preponderance of the evidence both deficient performance by counsel and prejudice suffered by the defendant. See Strickland, 466 U.S. at 687; Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). In addition, as the Texas Court of Criminal Appeals has explained,
We note that Toliver's appellate brief inaccurately states, "The Strickland test, however, applies only to the Appellant's allegation of ineffective assistance of counsel during the guilt-innocent stage of the trial, not to the punishment stage." Toliver cites case law to that effect, such as Ex parte Cruz, 739 S.W.2d 53, 58 (Tex. Crim. App. 1987). However, the Texas Court of Criminal Appeals overruled the Cruz line of cases in Hernandez, where it determined that Strickland applies to "noncapital sentencing proceedings." See Hernandez v. State, 988 S.W.2d 770, 770, 772 (Tex. Crim. App. 1999); see also Malek, 2012 WL 370551, at *2 (applying Strickland to claim that counsel provided ineffective assistance at punishment hearing).
Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. This is true with regard to the question of deficient performance—in which counsel's conduct is reviewed with great deference, without the distorting effects of hindsight—where counsel's reasons for failing to do something do not appear in the record. We have said that trial counsel should ordinarily be
afforded an opportunity to explain his actions before being denounced as ineffective. Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was so outrageous that no competent attorney would have engaged in it.Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (cleaned up).
Here, although Toliver filed a motion for new trial and the trial court held a hearing on the motion, the attorney who represented Toliver at the revocation hearing did not testify. Therefore, the record before us does not indicate that Toliver's counsel was given the opportunity to explain her decisions. Based on the record before us, we cannot conclude that Toliver's counsel's conduct was so outrageous that no competent attorney would have engaged in it. The lab report Toliver refers to does not establish that the weapon Toliver allegedly used in the new offense was not a "deadly weapon"—it only establishes that the lab had to clean the firearm it received before it could fire it. Although Toliver contends that this evidence could have supported an argument that the weapon "had been exposed to the outdoor elements for a far longer period of time than the matter of minutes it required the officers to locate the gun," we conclude that this argument is speculative at best and unlikely to convince the trial court that Toliver did not commit the alleged offense. Therefore, we cannot conclude that Toliver has met his burden of showing that his counsel's performance was deficient. Furthermore, even if we could conclude that his counsel's performance was deficient, we could not conclude that Toliver has met his burden of showing that he suffered prejudice from this deficient performance. Given the eye-witness testimony of the victims and the other evidence that the State produced, it was unlikely that the lab report would have persuaded the trial court to find that Toliver did not commit the new offense. And if the lab report would not have changed this finding, it is unlikely to have affected the sentence that the trial court imposed.
Because we conclude that Toliver has failed to establish either prong of the Strickland standard, we overrule his fifth issue as it relates to the sentencing phase of the revocation hearing.
CONCLUSION
We affirm the trial court's judgment adjudicating Toliver's guilt.
/s/_________
Scott K. Field, Justice Before Chief Justice Rose, Justices Goodwin and Field Affirmed Filed: May 15, 2018 Do Not Publish