Anthony Michael Hennard v. State ( 2018 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-17-00271-CR
____________________
ANTHONY MICHAEL HENNARD, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 12-04-04166-CR
________________________________________________________ _____________
MEMORANDUM OPINION
In this appeal, Anthony Michael Hennard challenges the trial court’s decision
to revoke the order it issued placing Hennard on community supervision, and then
found Hennard guilty of the offense of indecency with a child by exposure.1 In one
issue, Hennard argues that his trial counsel rendered ineffective assistance by failing
1
See Tex. Penal Code Ann. § 21.11(a)(2) (West Supp. 2011) (Indecency with
a Child).
1
to advise him before he decided to plead true to violating the community supervision
order that he could have challenged the admissibility of the results of a polygraph
examination required by the order.
Because Hennard pleaded true to violating the community supervision order
in ways that are independent of any issues surrounding the results of his polygraph,
we affirm.
Background
In 2014, and based on the terms of a plea agreement, Hennard pleaded guilty
to the crime of indecency with a child by exposure. 2 In carrying out the agreement,
the trial court deferred pronouncing Hennard guilty on the charge and placed him on
community supervision for a period of five years.
Around two years later, the State moved to revoke the trial court’s community
supervision order. According to the State, Hennard violated the order in sixty
separate ways. During the hearing on the motion, Hennard pleaded “true” to thirty
of the alleged violations and “not true” to the others. After the hearing, the trial court
found all the violations alleged in the State’s motion to be true. Based on those
findings, the trial court revoked the community supervision order, found Hennard
2
Id.
2
guilty of the allegations in the indictment used to charge him with indecency, and
assessed a seven-year sentence.
In his brief, Hennard argues that his attorney should have advised him to plead
“not true” to the allegations in the motion to revoke that would have required the
State to present evidence about the polygraph examination that Hennard took while
on community supervision. According to Hennard, his attorney should have advised
him that he could challenge the admissibility of the results of the polygraph by
claiming that the State obtained the evidence in violation of his Fifth Amendment
rights, which prohibits the use of evidence obtained from a defendant without first
warning the defendant that the evidence could be used against him. See U.S. Const.
amend. V.
Standard of Review
We review a trial court’s decision to revoke a community supervision order
using an abuse-of-discretion standard.3 To prevail in a revocation hearing, the State
must establish, by a preponderance of the evidence, that the defendant violated at
least one term or condition of the community supervision order.4 Much like the
3
Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006).
4
Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009) (noting that one
violation is sufficient to affirm a trial court’s decision revoking an order placing a
defendant on community supervision); Gobell v. State, 528 S.W.2d 223 (Tex. Crim.
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circumstances before the Court of Criminal Appeals in Smith v. State, 286 S.W.3d
333, 342 (Tex. Crim. App. 2009), Hennard claims only that his counsel was
ineffective based on the manner he handled some, but not all, of the allegations in
the State’s motion.
In general, “[a] plea of true, standing alone, is sufficient to support the
revocation of community supervision and adjudicate guilt.”5 Usually, establishing
that a defendant violated a single condition of a community supervision order allows
an appellate court to affirm the trial court’s ruling revoking the order used to place
a defendant on community supervision.6 Because Hennard is claiming he received
ineffective assistance of counsel, he must establish that “but for his counsel’s
unprofessional errors, the results of the proceedings would have been different.”7
“Direct appeal is usually an inadequate vehicle for raising such a claim because the
App. 1975) (explaining that the trial court did not abuse its discretion in revoking
the defendant’s probation when the defendant failed to challenge all the grounds on
which the trial court revoked its decision placing the defendant on community
supervision).
5
Tapia v. State, 462 S.W.3d 29, 31 n.2 (Tex. Crim. App. 2015) (citing Moore
v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980)).
6
Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012) (stating that
“proof of a single violation will support revocation”).
7
Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).
4
record is generally undeveloped.”8 The problems created by an inadequate record
applies when the defendant claims “deficient performance” by his counsel, as
without a fully developed record, counsel’s reasons for failing to do something are
rarely apparent from the record.9 Trial counsel “should ordinarily be afforded an
opportunity to explain his actions before being denounced as ineffective.” 10 When
trial counsel’s explanation is not in the record, the appellate court should not find
counsel was deficient unless the challenged conduct was “so outrageous that no
competent attorney would have engaged in it.”11
Analysis
On appeal, Hennard argues his counsel was ineffective because he failed “to
advise [Hennard] not to plead true to those eleven [violations in the State’s motion
to adjudicate that were dependent on the polygraph results], as they formed a
substantial part of the State’s case, and should not have been considered by the Court
in her ruling to revoke [Hennard’s] probation, and/or to punish him with seven (7)
8
Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012) (citing
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)).
9
Id. at 593.
10
Menefield, 363 S.W.3d at 593 (quoting Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005)).
11
Id. at 593.
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years in TDCJ-ID.” Hennard concludes the trial court would have ruled differently
had his attorney advised him to plead not true on the violations on which the State
would have needed to ask the court to admit the polygraph.
Hennard has not claimed that trial counsel was ineffective for failing to advise
him to plead true to all the violations that the trial court relied on in revoking the
community supervision order. And significantly, most of the trial court’s findings
relevant to Hennard’s violations are unrelated to any questions about the
admissibility of the results of his polygraph. Thus, Hennard cannot show the
outcome of the hearing would have been different had he pleaded not true to the
allegations that might have required the State to ask the trial court to consider the
polygraph. The record also fails to establish that the trial court gave Hennard a more
severe punishment than he would have received had he elected to plead not true to
the allegations that he claims his counsel should have recommended that he
challenge.
Conclusion
We conclude the record supports the trial court’s judgment. 12 We overrule
Hennard’s sole issue and affirm the judgment.
12
See Smith, 286 S.W.3d at 342.
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AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on August 13, 2018
Opinion Delivered September 12, 2018
Do Not Publish
Before Kreger, Horton and Johnson, JJ.
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