Matthew Lee Adame v. State ( 2012 )

Opinion issued July 26, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00842-CR
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MATTHEW LEE ADAME, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Case No. 1211396
MEMORANDUM OPINION
Appellant, Matthew Lee Adame, was charged by indictment with aggravated
robbery with a deadly weapon.1 Appellant pleaded guilty. The trial court deferred
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See TEX. PENAL CODE ANN. § 29.03 (Vernon 2011).
adjudication of guilt and placed appellant on community supervision for five years.
The State filed a motion to adjudicate guilt based on a charge of burglary of a
vehicle. The trial court found the allegation to be true and entered a final
adjudication of guilt of the original indictment. The trial court assessed a
punishment of 12 years’ confinement. In two issues, appellant argues that (1) there
was insufficient evidence to support adjudication and (2) he received ineffective
assistance of counsel during the sentencing phase.
We affirm.
Background
On August 7, 2009, appellant pleaded guilty to a charge of aggravated
robbery with a deadly weapon. Appellant was placed on five years’ community
supervision deferred adjudication. One condition of appellant’s community
supervision was that he would “[c]ommit no offense against the laws of this or any
other State or of the United States.”
On May 7, 2011, at approximately 2:00 a.m., two police officers came upon
appellant and his uncle, Leonard Ernest Guzman. Appellant was sitting in the
driver’s side of his car, and Guzman was digging through the trunk of a
neighboring car. When the police officers stopped, appellant stepped out of his car
and moved away from the police and toward the front of the car. When he was
told to stop, appellant did so. The police officers found that the keyhole of the
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trunk of the second car had been pried, bent, and dented. There were various tools
on the ground and in the back seat of appellant’s car. The police officers located
the owner of the second vehicle, Ezequiel Ramirez, who told the officers that the
car belonged to him, as did the tools on the ground and in appellant’s car.
Appellant was arrested.
Based on that arrest, the State filed a motion to revoke appellant’s
community supervision, alleging that he had violated a condition of his community
supervision. Appellant entered a plea of not true. The trial court found the
allegation to be true and made a final adjudication of guilt. Appellant was
sentenced to 12 years’ confinement.
Sufficiency of Evidence
In his first issue, appellant argues that the evidence was insufficient to
support final adjudication.
A. Standard of Review
A trial court’s determination on a motion to adjudicate is reviewable in the
same manner as a determination of a motion to revoke community supervision.
TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(b) (Vernon Supp. 2011). A revocation
proceeding is neither criminal nor civil in nature; rather, it is an administrative
proceeding. Canseco v. State, 199 S.W.3d 437, 438 (Tex. App.—Houston [1st
Dist.] 2006, pet. ref’d). At a revocation hearing, the State must prove by a
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preponderance of the evidence that the defendant has violated a condition of his
community supervision. Id. at 438–39. The State satisfies its burden if the greater
weight of the credible evidence creates a reasonable belief that the defendant
violated a condition of his probation as alleged by the State. Solis v. State, 589
S.W.2d 444, 447 (Tex. Crim. App. 1979); Armstrong v. State, 82 S.W.3d 444, 448
(Tex. App.—Austin 2002, pet. ref’d). Proof of a single violation is sufficient to
support a revocation. Canseco, 199 S.W.3d at 439.
Our review of an order adjudicating guilt and revoking community
supervision is limited to determining whether the trial court abused its discretion in
determining that the defendant violated the terms of his community supervision.
Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Duncan v. State,
321 S.W.3d 53, 56–57 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). We view
the evidence in the light most favorable to the trial court’s order. Canseco, 199
S.W.3d at 439; Duncan, 321 S.W.3d at 57. As the trier of fact at a revocation
proceeding, the trial court determines the credibility of the witnesses and the
weight to be given to their testimony. Armstrong, 82 S.W.3d at 448.
B. Analysis
Appellant contends that the trial court abused its discretion when it found
that he violated the terms of his community supervision by committing the offense
of being a party to a burglary of a vehicle. We disagree.
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Appellant was found to have violated Penal Code section 30.04, which
provides, “A person commits an offense if, without the effective consent of the
owner, he breaks into or enters a vehicle or any part of a vehicle with intent to
commit any felony or theft.” TEX. PENAL CODE ANN. § 30.04 (Vernon 2011). The
State sought to charge appellant under the law of parties. Under section 7.02 of the
Texas Penal Code, “[a] person is criminally responsible for an offense committed
by the conduct of another if . . . acting with intent to promote or assist the
commission of the offense, he . . . aids, or attempts to aid the other person to
commit the offense.” TEX. PENAL CODE ANN. § 7.02(a)(2) (Vernon 2011).
Appellant contends that the State failed to offer sufficient proof to establish
the required actus reus. More specifically, appellant contends that the State’s
evidence failed to show that he participated in the crime. Instead, appellant argues,
the evidence shows no more than his mere presence.
Mere presence at the scene of the offense is not enough to make one a party,
but may be sufficient, when taken with other evidence to show that he was a
participant. Wygal v. State, 555 S.W.2d 465, 469 n.3 (Tex. Crim. App. 1977). The
fact-finder may consider events occurring before, during, and after the commission
of the offense in determining whether a person is a party. Id. at 468–69; Diaz v.
State, 902 S.W.2d 149, 151–52 (Tex. App.—Houston [1st Dist.] 1995, no pet.).
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Appellant’s common-law wife testified that Guzman came to appellant in
the middle of the night to ask for a ride. At the hearing, appellant testified that he
was the owner of his vehicle and that he used it to give Guzman a ride to the
location where they were both arrested for robbery of a vehicle.
The arresting officer testified that appellant got out of his vehicle and began
to walk away when the police arrived. The officer stated that in his opinion,
appellant “was the getaway driver.”
Ramirez testified that he owned the burglarized vehicle and the tools inside
the trunk. He also testified that he had not given consent to appellant or Guzman
to be in his vehicle or to move his tools from his trunk to appellant’s car.
In short, appellant had agreed to drive his uncle somewhere in the middle of
the night. He was in his car while his uncle was breaking in to a nearby car and
transferring items into appellant’s car. When police arrived, appellant tried to walk
away. This is sufficient evidence to support a finding by a preponderance of the
evidence that appellant was more than merely present during the commission of
the crime. See Solis, 589 S.W.2d at 447 (requiring the greater weight of the
credible evidence to create a reasonable belief that the defendant violated a
condition of his probation as alleged by the State).
Appellant contended that he was “half asleep” and “drowsy” while Guzman
moved Ramirez’s tools from Ramirez’s car to appellant’s car. Appellant also
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testified that he was aware that Guzman put a bag in the back of his car, but he did
not testify as to whether he knew the contents of the bag. At most, this created a
conflict in the evidence, which is left to the fact finder to resolve. Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We may not re-evaluate the
weight and credibility of the record evidence and thereby substitute our judgment
for that of the fact-finder. Id.
Viewing the evidence in the light most favorable to the court’s order, we
hold that the trial court could have reasonably found by a preponderance of the
evidence that appellant aided or attempted to aid Guzman in committing the
offense of vehicle burglary, thus violating a condition of his community
supervision. We overrule appellant’s first issue.
Ineffective Assistance of Counsel
In his second issue, appellant contends that he received ineffective assistance
of counsel during the punishment phase. Specifically, appellant asserts that his
counsel failed “to develop and present a mitigation theme of mental illness through
the [presentence investigation] process.”
A. Standard of Review
The Sixth Amendment to the United States Constitution guarantees the right
to reasonably effective assistance of counsel in criminal prosecutions. See U.S.
CONST. amend. VI. To show ineffective assistance of counsel, a defendant must
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demonstrate both (1) that his counsel’s performance fell below an objective
standard of reasonableness and (2) that there is a reasonable probability 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, 104 S. Ct. 2052,
2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App.
2005). Failure to make the required showing of either deficient performance or
sufficient prejudice defeats the ineffectiveness claim. See Williams v. State, 301
S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 S.W.3d at 101.
An appellant bears the burden of proving by a preponderance of the
evidence that his counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded
in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Id. at 814. We presume that a counsel’s conduct falls within the
wide range of reasonable professional assistance, and we will find a counsel’s
performance deficient only if the conduct is so outrageous that no competent
attorney would have engaged in it. Andrews, 159 S.W.3d at 101.
The Court of Criminal Appeals recently stated that “[i]n making an
assessment of effective assistance of counsel, an appellate court must review the
totality of the representation and the circumstances of each case without the benefit
of hindsight.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). The
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court further stated that demonstrating ineffective assistance of counsel on direct
appeal is “a difficult hurdle to overcome.” Id. The court instructed, “[T]he record
must demonstrate that counsel’s performance fell below an objective standard of
reasonableness as a matter of law, and that no reasonable trial strategy could justify
trial counsel’s acts or omissions, regardless of his or her subjective reasoning.” Id.
B. Analysis
Appellant contends that he was denied effective assistance of counsel at his
revocation hearing because his counsel failed to “press for a mental health
evaluation as part of a [presentence investigation].” Appellant relies on article
42.12, section 9(i) of the Code of Criminal Procedure, which states that a
presentence investigation shall include a psychological evaluation if it appears the
defendant has a mental impairment. See TEX. CODE CRIM. PROC. ANN. art. 42.12
§ 9(i) (Vernon Supp. 2011).
Although section 9(a) requires a presentence investigation to be conducted
before sentencing,2 the right to a presentence investigation may be waived. See
TEX. CODE CRIM. PROC. ANN. art. 42.12 §9(a); Welch v. State, 335 S.W.3d 376,
382 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). A defendant may waive
any right secured to him by law, including the right to a presentence investigation
2
Subsection (a) provides that “before the imposition of sentence by a judge in a
felony case . . . the judge shall direct a supervision officer to report to the judge in
writing on the circumstances of the offense with which the defendant is charged.”
TEX. CODE CRIM. PROC. ANN. art. 42.12 § 9(a) (Vernon Supp. 2011).
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report. See TEX. CODE CRIM. PROC. ANN. art. 1.14(a) (Vernon 2005); see also
Welch, 335 S.W.3d at 382.
At the plea phase of the trial, appellant stated in writing: “I do not want the
probation department to prepare a presentence investigation report, and I give up
any right to have such a report prepared in this case.” Final adjudication of guilt
and sentencing are part of the same proceeding as the plea phase. See TEX. CODE
CRIM. PROC. ANN. art. 42.12 § 5(b) (“After an adjudication of guilt, all
proceedings, including assessment of punishment, pronouncement of sentence,
granting of community supervision, and defendant’s appeal continue as if the
adjudication of guilt had not been deferred.”). The trial court is not required to
have a presentence investigation report prepared when there has been a waiver of
that right at the plea phase. Griffith v. State, 166 S.W.3d 261, 265 (Tex. Crim.
App. 2005). “Because the initial plea and the adjudication and sentencing [are]
really one legal proceeding, the appellant’s waiver continue[s] to be effective.” Id.
It is reasonable to conclude that counsel was aware of the effective waiver at
the plea phase and, for that reason, did not seek a presentence investigation report.
Trial counsel could have considered an objection to the lack of a psychological
evaluation in the presentence investigation report futile, given that appellant had
waived any right to have a presentence investigation report prepared. Trial counsel
is not ineffective for failure to make futile objections. See Ex parte White, 160
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S.W.3d 46, 53 (Tex. Crim. App. 2004); Vaughn v. State, 931 S.W.2d 564, 566
(Tex. Crim. App. 1996); see also Edmond v. State, 116 S.W.3d 110, 115 (Tex.
App.—Houston [14th Dist.] 2002, pet. ref’d) (stating trial counsel is not ineffective
for failing to make a frivolous objection).
Appellant relies on Welch v. State, 335 S.W.3d 376 (Tex. App.—Houston
[14th Dist.] 2011, pet. ref’d) to support his claim of ineffective assistance of
counsel. In Welch, the defendant contended that the trial court had an obligation to
consider mitigating factors regarding personal culpability, specifically mental
competence. 335 S.W.3d at 378. The Fourteenth Court of Appeals held that the
trial court did not have an obligation to “scrutinize the universe of mitigating
factors that might remain undiscovered in the case.” Id. at 381. The court further
held that “[t]he right to a psychological evaluation may be forfeited, just as the
right to a presentence investigation generally.” Id. at 382 (citing Summers v. State,
942 S.W.2d 695, 696–97 (Tex. App.—Houston [14th Dist.] 1997, no pet.)).
In making his ineffective assistance of counsel claim, appellant only focuses
on Welch’s assertion that, in order to preserve error, there must be a specific
objection to the absence of a psychological evaluation from the presentence
investigation report. Id. Appellant argues he received ineffective assistance of
counsel claim because his trial counsel failed to object to the absence of a
psychological evaluation. Appellant’s counsel could not have objected to the lack
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of a psychological evaluation in the presentence investigation report when there
was no presentence investigation report due to appellant’s previous waiver. See Ex
parte White, 160 S.W.3d at 53 (holding trial counsel is not ineffective for failure to
make futile objections).
We hold that appellant has not met his burden to demonstrate ineffective
assistance of counsel by a preponderance of the evidence because he has not shown
that his trial counsel’s performance fell below an objective standard of
reasonableness. See Strickland, 466 U.S. at 687–88, 104 S. Ct. at 2064; Andrews,
159 S.W.3d at 101–02. Accordingly, we overrule appellant’s second issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Higley, Sharp, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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