Lawrence Lezado Below v. State

Opinion issued May 27, 2010. In The Court of Appeals For The First District of Texas ———————————— NO. 01-09-00008-CR ——————————— Lawrence Lezado Below, Appellant V. The State of Texas, Appellee On Appeal from the 262nd District Court Harris County, Texas Trial Court Case No. 1094369 MEMORANDUM OPINION On April 25, 2007, appellant agreed to a plea-bargain for the felony offense of aggravated assault.[1] The trial court deferred adjudication of appellant’s guilt for five years, placed him on community supervision, and assessed a $500 fine. On November 4, 2008, the State filed a motion to adjudicate guilt. On December 4, 2008, the trial court held a hearing and adjudicated appellant guilty. The trial court assessed punishment at 10 years’ imprisonment. In two points of error, appellant argues that (1) the evidence was legally insufficient to support his adjudication of guilt and (2) he received ineffective assistance of counsel. We affirm. BACKGROUND On February 9, 2007, the State indicted appellant for aggravated assault. On April 25, 2007, appellant entered a plea of guilty, and the trial court deferred adjudication of guilt for five years, assessed a $500 fine, and placed him on community supervision. Appellant’s community supervision was conditioned on his compliance with 24 requirements, including conditions that he (1) not break any laws; (2) report to a probation officer monthly; (3) make payments to the court and local charities; and (4) perform 10 hours of community service per month until he had completed 200 hours. On November 4, 2008, the State filed a motion to adjudicate guilt. The State alleged that appellant had violated seven conditions of his community supervision, including (1) breaking the law by abusing animals; (2) failing to report to his probation officer in December 2007; (3) falling behind in the payment of several different fines and fees; and (4) failing to perform his community service hours as required. On December 4, 2008, the trial court held a hearing on the State’s motion to adjudicate appellant’s guilt. At the hearing, the State called Janie Hernandez, the court’s liaison officer with the probation office, and Shawna Sandberg, an animal cruelty investigator with the Houston SPCA. Appellant and his wife testified in his defense. Hernandez testified that appellant violated the terms of his community supervision by being charged with cruelty to animals, failing to report to his probation officer in December 2007, falling behind in the payment of fines and fees, and not completing his community supervision as required. On cross-examination, she testified that, by the time of the hearing, appellant might have rectified most of these issues, but that he could not have cured his failure to report to his probation officer in December 2007. Shawna Sandberg testified that, on July 8, 2008, she was dispatched to investigate a claim of animal cruelty. She went to appellant’s home and found four pit-bull dogs inside a kennel that was approximately two feet by three feet. They had no food or water available to them and were in poor physical condition. After obtaining a warrant, she returned to appellant’s home with a constable and seized the dogs. The four dogs were later euthanized due to their poor physical condition and the fact that the breed is not easily adoptable. Appellant was charged with cruelty to animals. Appellant testified that he was in Houston at the time of the seizure of the dogs and that his wife had put them into the kennel. He further testified that he was responsible for the dogs. He admitted that he did not report to his probation officer in December 2007 because he was working overtime, but he testified that instead he called his probation officer on January 4, 2008. Appellant also admitted that he had not made all the payments he was supposed to have made under the conditions of his community supervision and that he had fallen behind in the completion of his community service hours, but he claimed that his payments and community service hours were current as of the time of the hearing. Appellant’s wife testified that she put the dogs in the kennel and that appellant was in Houston on the day that the dogs were seized. The trial court found that the testimony of appellant and his wife lacked credibility, adjudicated appellant guilty of the original assault charge, and assessed his punishment at 10 years’ imprisonment. At the conclusion of the sentencing, the trial court allowed appellant to make a brief statement, in which he indicated that he did not believe he had received effective assistance of counsel. Appellant claimed, “ . . . I don’t think I was represented correctly. But due to the circumstances at the time, I had to take what I had to take because [] my attorney told me that’s what I [was] supposed to do.” Appellant did not file a motion for a new trial. This appeal followed. LEGAL SUFFICIENCY In his first issue, appellant contends that the evidence is legally insufficient to sustain his adjudication of guilt. A. Standard of Review A revocation proceeding is an administrative proceeding, and in a revocation proceeding, the State must prove by a preponderance of the evidence that a defendant has violated a condition of his community supervision. Rickels v. State, 202 S.W.3d 759, 763­­–64 (Tex. Crim. App. 2006); Canseco v. State, 199 S.W.3d 437, 438 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). A showing of “a single violation is sufficient to support a revocation.” Canseco, 199 S.W.3d at 439. We review a trial court’s determination to revoke community supervision for an abuse of discretion. Id. We view the evidence in the light most favorable to the trial court’s decision. Id. “The trial court is the exclusive judge of the credibility of the witnesses and [it] must determine whether the allegations in the motion to revoke are sufficiently demonstrated.” Id. B. Discussion Appellant and Hernandez testified that appellant failed to meet with his probation officer in December 2007. Additionally, the evidence indicated that appellant had not performed his community service “at the rate of 10 hours per MONTH” as required by the conditions of his community supervision. Therefore, the trial court had sufficient evidence to find that appellant violated the conditions of his community supervision. See id. (holding that one violation of condition of community supervision is sufficient to support revocation). We conclude that the trial court did not abuse its discretion in finding that appellant had violated the terms of his community supervision. We overrule appellant’s first point of error. INEFFECTIVE ASSISTANCE OF COUNSEL In his second issue, appellant contends that his testimony at his revocation hearing was involuntary because his trial counsel advised him to lie on the stand about where he was on the day that his dogs were seized, failed to object to hearsay testimony, failed to investigate the facts of the case, and failed to advise him of the consequences of entering a plea of “not true” to the allegations that he had violated the conditions of his community supervision. A. Standard of Review To prevail on a claim of ineffective assistance of counsel, an appellant must show that his trial counsel’s performance was deficient and that a reasonable probability exists that, but for the deficiency, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068 (1984). The first prong of the Strickland test requires that the defendant show that counsel’s performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). This does not require a showing that counsel’s representation was without error. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Isolated errors do not render counsel’s performance ineffective. Id. “When handed the task of determining the validity of a defendant’s claim of ineffective assistance of counsel, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.” Thompson, 9 S.W.3d at 813. The second prong requires the defendant to show a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. Because the reviewing court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Any allegation of ineffectiveness must be firmly founded in the record, which must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. We will not speculate to find trial counsel ineffective when the record is silent on counsel’s reasoning or strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). In rare cases, however, the record can be sufficient to prove that counsel’s performance was deficient, despite the absence of affirmative evidence of counsel’s reasoning or strategy. See Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000). Such cases are limited to occasions where no reasonable attorney could have made such a decision. Weaver v. State, 265 S.W.3d 523, 538 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). An appellant’s brief must contain a “clear and concise argument for the contentions made, with appropriate citations to authorities and the record” or he has not presented a proper argument for appellate review. Tex. R. App. P. 38.1(i). When, as here, an appellant does not file a motion for new trial that would have afforded trial counsel an opportunity to explain his strategy and no direct evidence in the record establishes why appellant’s attorney acted as he did, we presume that counsel had a plausible reason for his actions. See Thompson, 9 S.W.3d at 814. We review the record to determine whether this is one of those rare cases where no reasonable attorney could have made the decisions complained of in this appeal. See id. B. Analysis Appellant contends that his counsel was ineffective because she advised him to lie on the stand by testifying that he was in town on the day Sandberg seized the dogs, she failed to investigate the facts of his case, and she failed to advise him of the consequences of entering a plea of not true to the allegations that he had violated the conditions of his community supervision. Appellant and his wife both testified that he was in Houston on the day on which the dogs were seized. He testified on direct examination from his trial counsel that he left his home on the morning of July 8, 2007 and that he returned home around 8:00 p.m. Further, during direct and cross-examination, appellant’s counsel asked questions that indicated that she understood the basic facts and issues of the case. Lastly, on April 5, 2007, appellant signed admonishments before entering the plea-bargain that he faced a prison term of not less than 2 years or more than 20 years if his guilt was adjudicated. The record does not indicate in any way that appellant testified untruthfully, that his counsel encouraged him to lie on the stand, that counsel was unprepared for the hearing, or that counsel failed to advise appellant of the consequences of pleading “not true” to the allegations in the State’s motion to revoke. Appellant fails to support any of these allegations with citations to the record. Thus, appellant’s allegations on these grounds are not firmly founded in the record. See id. at 813 (holding that allegations of ineffective assistance of counsel must be firmly supported by record); see also Tex. R. App. P. 38.1(i) (providing that appellant’s brief must contain appropriate citations to authorities and record or he has not presented proper argument for appellate review). Appellant also contends that his trial counsel was ineffective for failing to object to Sandberg’s hearsay testimony. Appellant directs us to a single statement by Sandberg, in which she stated, “We spoke with a neighbor. They said they hadn’t seen anybody at the property for at least four days.” Appellant’s counsel did not object to this statement, but made several other objections to Sandberg’s testimony. Appellant has not shown that his trial counsel did not have a sound reason or strategy behind this failure to object. See Jackson, 877 S.W.2d at 771 (holding that when record is silent on counsel’s reasoning or strategy, appellate courts presume that counsel had valid reason or strategy for his actions). We conclude that appellant has failed to show that counsel acted unreasonably in failing to object to this testimony. We overrule appellant’s second issue. CONCLUSION We affirm the judgment of the trial court. Evelyn V. Keyes Justice Panel consists of Justices Keyes, Hanks, and Higley. Do not publish. Tex. R. App. P. 47.2(b). [1] See Tex. Penal Code Ann. § 22.02 (Vernon 2003) (providing elements for aggravated assault).