Malcolm Webb v. State ( 2012 )

NUMBER 13-11-00600-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MALCOLM WEBB, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 94th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Vela, and Perkes
Memorandum Opinion by Justice Perkes
Appellant, Malcolm Webb, appeals from an order revoking probation. By his sole
issue, appellant argues that his counsel provided ineffective assistance during the
revocation proceedings. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to a plea-bargain agreement, on February 27, 2009, appellant pleaded
guilty to one count of aggravated robbery, a first-degree felony. See TEX. PENAL CODE ANN.
§ 29.02 (West 2011). The trial court placed him on six years’ deferred-adjudication
probation.
On June 28, 2011, the State filed a motion to revoke probation, alleging seven
violations of his probation stemming from appellant’s conduct while at a drug rehabilitation
facility. 1 Appellant’s violations included the following: submitting one urinalysis which
tested positive for synthetic cannabinoids; being placed on a behavior contract on two
separate occasions for failing to comply with program rules; being in possession of
contraband, a lighter; returning to the facility late from a weekend pass; failing to show proof
of attendance in a twelve-step program; and discharge from the drug rehabilitation facility for
non-compliance with program rules.
On August 12, 2011, the trial court heard the State’s motion to revoke probation.
During the hearing, the court questioned appellant on the written admonishments.
Appellant testified that he understood the proceedings and the potential consequences of
his plea; that he had read and reviewed the allegations with his counsel; that he understood
no plea agreement was in place; and that pleading true to one count alone could result in life
in prison. Appellant pleaded true to all seven alleged violations of his probation conditions.
The trial court revoked appellant’s unadjudicated probation, found appellant guilty of
aggravated robbery, and sentenced him to ten years’ confinement in the Texas Department
of Criminal Justice, Institutional Division.
1
The State filed two prior motions to revoke probation. The first motion resulted in an increase in the
length of appellant’s probation from six years to ten years. The second resulted in a court-ordered entrance
into the Substance Abuse Felony Punishment Facility, afterwards continuing into a drug and alcohol abuse
treatment plan. Appellant was continued on deferred adjudication after the disposition of both prior motions to
revoke.
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II. DISCUSSION
In his sole issue, appellant contends that his counsel provided ineffective assistance
by advising him to plead true to the allegations in the State’s motion to revoke probation
because appellant allegedly had a defense and pleading true was not in his best interest.2
We disagree.
Both the United States and Texas Constitutions guarantee an accused the right to
assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; see also TEX.
CODE CRIM. PROC. ANN. art. 1.051 (West 2010). This right necessarily includes the right to
reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686
(1984). In order to prove an ineffective assistance of counsel claim, a defendant must show
(1) by a preponderance of the evidence, that counsel’s performance was so deficient that he
was not functioning as acceptable counsel under the Sixth Amendment, and (2) there is a
reasonable probability that, but for counsel’s error or omission, the result of the proceedings
would have been different. Strickland, 466 U.S. at 687–96; Thompson v. State, 9 S.W.3d
808, 812 (Tex. Crim. App. 1999). The defendant must overcome the strong presumption
that the challenged action might have been sound trial strategy. Thompson, 9 S.W.3d at
813. We will not speculate to find trial counsel ineffective when the record is silent as to
counsel’s reasoning or strategy. Godoy v. State, 122 S.W.3d 315, 322 (Tex.
App.—Houston [1st Dist.] 2003, pet. ref’d).
2
Although appellant states his sole point of error is ineffective counsel, appellant’s argument begins
by claiming that he was not discharged from the treatment facility for any of the minor violations, but solely for
the positive urinalysis for synthetic marihuana. Appellant claims that it is wrong to allow the State to include
the allegedly minor violations in the revocation motion. Appellant failed to cite any authority to support the
proposition that the State should have been precluded from including those violations in the motion. Appellant
has failed to present this issue for appellate review. See TEX. R. APP. P. 38.1(i); Castillo v. State, 186 S.W.3d
21, 24 (Tex. App.—Corpus Christi 2005, pet. ref’d).
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When, as in this case, there is no evidentiary record developed at a hearing on a
motion for new trial, it is extremely difficult to show that trial counsel's performance was
deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); see also Aldaba
v. State, No. 14-08-00417-CR, 2009 WL 1057685, at *5 (Tex. App.—Houston [14th Dist.]
April 16, 2009, pet. ref’d) (mem. op.). If there is no hearing, or if counsel does not appear at
the hearing, an affidavit from trial counsel becomes almost vital to the success of an
ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208–09 (Tex. App.—Houston
[14th Dist.] 2000, pet. ref’d). The Texas Court of Criminal Appeals has stated that it should
be a rare case in which an appellate court finds ineffective assistance on a record that is
silent as to counsel’s trial strategy. See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim.
App. 2005). On a silent record, this Court can find ineffective assistance of counsel only if
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).
Appellant’s ineffective assistance claim fails because he did not meet his burden
under both prongs of the Strickland test. The record does not show that appellant’s
counsel’s performance was so deficient that he was not functioning as acceptable counsel
under the Sixth Amendment. Appellant claims that he had a possible legal defense that
was grounded in his testimony at the hearing. After pleading true, appellant testified
regarding his conduct at the drug rehabilitation facility. Appellant testified that the synthetic
marihuana incident was a singular incident, that there were no further positive tests, and that
the other violations were minor in nature. Appellant’s testimony, however, is not a defense
to the violations. Moreover, a single violation of a probation condition is grounds for a trial
court’s revocation of probation. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App.
4
[Panel Op.] 1980); Burns v. State, 835 S.W.2d 733, 735 (Tex. App.—Corpus Christi 1992,
pet. ref’d).
Appellant did not file a motion for new trial or object to the alleged ineffective
assistance of counsel in the trial court, and he brings forward no evidence of what counsel’s
trial strategy may have been. Appellant fails to proffer any justification, or point to any
evidence in the record, that shows a reasonable probability that the motion to revoke
probation would have been decided differently if counsel’s alleged ineffectiveness had not
occurred. See Strickland, 466 U.S. at 687–96. Appellant’s sole issue on appeal is
overruled.
III. CONCLUSION
We affirm the trial court’s judgment.
Gregory T. Perkes
Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the
21st day of June, 2012.
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