Opinion
No. 04-16-00629-CR
10-25-2017
Ronald WHITLOW, Appellant v. The STATE OF TEXAS, Appellee
MEMORANDUM OPINION
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR10248
Honorable Ray Olivarri, Judge Presiding Opinion by: Irene Rios, Justice Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Irene Rios, Justice AFFIRMED
Ronald Whitlow appeals the trial court's judgment revoking his community supervision and sentencing him to four years' imprisonment. In a single issue on appeal, Whitlow contends he received ineffective assistance of counsel when his attorney failed to object to a portion of the probation liaison's testimony. We affirm the trial court's judgment.
BACKGROUND
On January 14, 2016, Whitlow pled nolo contendere to the offense of assault, family violence. The trial court assessed punishment at four years' imprisonment, suspended in favor of four years' community supervision. On April 12, 2016, the State filed a motion to revoke Whitlow's community supervision, alleging he violated multiple conditions of his probation. On August 11, 2016, the trial court conducted a hearing on the State's motion, during which Whitlow pleaded true to two alleged violations of his probation conditions: (1) failure to report to the community supervision department as instructed, and (2) commission of the misdemeanor offense of possession of marijuana.
During the hearing, the trial court requested a statement from the probation department liaison. Though the liaison was not sworn in as a witness, the liaison provided the trial court several reasons supporting the probation department's recommendation that the court revoke Whitlow's community supervision. Specifically, the liaison stated "the [probation] officer documented Mr. Whitlow is very familiar with the criminal justice system as evidenced by his lengthy arrest record, ... obviously had no concern for his freedom," and failed to report to his probation officer after providing the officer his updated address. The liaison further stated, "per the sheriff officer in Fayette County, [Whitlow was] going through heroin withdrawal" at the time of his arrest for marijuana possession on July 14, 2016.
The trial court asked Whitlow to explain why he should be continued on probation. Whitlow denied he was going through heroin withdrawal at the time of his arrest and claimed he missed his supervision appointments because he was mistaken about the correct report date. As the trial court questioned Whitlow, the trial court specifically referenced Whitlow's failure to comply with the conditions of his probation, commission of a subsequent offense, and alleged heroin withdrawal. The trial court revoked Whitlow's probation and sentenced Whitlow to four years' imprisonment.
Whitlow appeals.
STANDARD OF REVIEW
To prevail on an ineffective assistance of counsel claim, the appellant must prove by a preponderance of the evidence that (1) counsel's performance was deficient, i.e., counsel's assistance fell below an objective standard of reasonableness, and (2) he was prejudiced by counsel's deficient performance, i.e., a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). Failure to make the required showing of either deficient performance or prejudice defeats an appellant's ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
To evaluate an ineffectiveness claim, we look to the "totality of the representation and the particular circumstances of each case." Id.; Gauna v. State, 04-16-00263-CR, 2017 WL 685760, at *2 (Tex. App.—San Antonio Feb. 22, 2017, no pet.). In so doing, we indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813; Gauna, 2017 WL 685760, at *2. Therefore, Whitlow "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813; see also Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). "[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Therefore, we cannot speculate beyond the record provided as to the reasons for trial counsel's actions, but rather presume the actions were taken as part of a strategic plan for representing the client. Rodriguez v. State, 336 S.W.3d 294, 302 (Tex. App.—San Antonio 2010, pet. ref'd). Consequently, direct appeal is usually an inadequate vehicle for raising an ineffective assistance of counsel claim because the record is generally undeveloped and provides no explanation for counsel's actions. Goodspeed, 187 S.W.3d at 392. Moreover, absent a developed record, "an appellate court should not find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
To satisfy the second prong of Strickland, the appellant must show a reasonable probability that, if not for counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694; Nava, 415 S.W.3d at 308. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694; Nava, 415 S.W.3d at 308. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding in which the result is being challenged. Strickland, 466 U.S. at 697.
APPLICATION
Whitlow contends trial counsel was deficient by failing to object to the probation liaison's alleged hearsay statement that Whitlow was undergoing heroin withdrawal when he was arrested for possession of marijuana. Because the State did not call the arresting officer to testify regarding the alleged heroin withdrawal, Whitlow argues the probation liaison's reference to the arresting officer's observation was inadmissible hearsay. Whitlow argues any reasonable trial counsel would have objected to the liaison's statement on hearsay grounds. To satisfy the prejudice prong, Whitlow argues the trial court considered his alleged heroin use in its decision to revoke his probation. Whitlow argues the trial court's reference to Whitlow's alleged heroin withdrawal during its questioning of Whitlow demonstrates there is a reasonable probability that the result of the proceeding would have been different but for the probation liaison's hearsay statement.
Whitlow fails to show trial counsel's performance was deficient. In this case, Whitlow did not file a motion for new trial or otherwise develop a record explaining counsel's conduct. While the appellate record does contain the reporter's record of the revocation hearing from which we can analyze Whitlow's appellate argument, the record provides no insight into trial counsel's strategy or reasoning. We will not speculate as to what counsel's strategy or reasons might have been with regard to the alleged error. Rodriguez, 336 S.W.3d at 302. It is for this reason that direct appeals for ineffective assistance of counsel claims rarely succeed. Goodspeed, 187 S.W.3d at 392; Infante v. State, 397 S.W.3d 731, 739 (Tex. App.—San Antonio 2013, no pet.) ("It is ordinarily very difficult to demonstrate ineffective assistance of counsel on direct appeal because the record does not usually contain counsel's reasons for his actions or inactions.").
Moreover, we cannot say that counsel's conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed, 187 S.W.3d at 392 (quoting Garcia, 57 S.W.3d at 440). Trial counsel could have refrained from objecting to prevent calling attention to the alleged heroin use, or could have regarded the liaison's statement as proper punishment evidence given that the trial court considered whether to revoke and what punishment to assess in the same proceeding. Acosta v. State, No. 04-00-00472-CR, 2001 WL 518782, at *2 (Tex. App.—San Antonio May 16, 2001, no pet.). See also Infante, 397 S.W.3d at 739 (holding that failure to object to alleged hearsay testimony about drug possession did not constitute deficient conduct by trial counsel).
Whitlow thus fails to rebut the presumption that counsel's decision not to object to the liaison's statement on hearsay grounds was reasonable in view of the totality of the proceedings. See Rodriguez, 336 S.W.3d at 302. For these reasons, Whitlow fails to establish that trial counsel's conduct was deficient.
Even assuming arguendo trial counsel's conduct was deficient, Whitlow cannot show counsel's alleged misconduct resulted in prejudice. In this case, the record demonstrates that even absent the liaison's reference to the alleged heroin withdrawal, the outcome of the hearing would have been the same. Whitlow's failure to report to his supervising officer and his drug possession offense provided the trial court with a sufficient basis to conclude that Whitlow was not a good candidate for continued supervision. Thus, even if the trial court had sustained an evidentiary objection and disregarded the probation liaison's reference to Whitlow's heroin use, the evidence supports the trial court's revocation of Whitlow's probation. We therefore conclude that Whitlow has not shown a reasonable probability that the liaison's statement affected the hearing's outcome.
Because Whitlow cannot overcome the presumption of effective assistance of counsel, his claim of ineffective assistance must fail. We overrule Whitlow's sole issue on appeal.
CONCLUSION
The judgment of the trial court is affirmed.
Irene Rios, Justice DO NOT PUBLISH