Dexter Travon Carpenter v. the State of Texas ( 2022 )

Affirmed and Memorandum Opinion filed November 22, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00166-CR
NO. 14-21-00167-CR
DEXTER TRAVON CARPENTER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Cause Nos. 1592887, 1592908
MEMORANDUM OPINION
Appellant Dexter Travon Carpenter appeals his convictions for the felony
offenses of credit card abuse and aggravated robbery of an elderly individual on the
grounds that his counsel was ineffective. In a single issue, he contends that his
constitutional right to the effective assistance of counsel was violated because his
counsel failed to adequately investigate the facts and evidence of each case and failed
to present key witnesses who “would have shed light as to the Appellant’s character
evidence.” Because the record does not support appellant’s ineffective assistance
claim, we overrule his sole appellate issue.
We affirm the trial court’s judgments.
Background
Appellant pleaded guilty to the felony offenses of credit card abuse and
aggravated robbery of an elderly individual without an agreed recommendation on
sentencing. After a presentence investigation was completed, the trial court deferred
findings of guilt and placed appellant on deferred adjudication community
supervision for ten years in both cases.
As conditions of his community supervision, the trial court ordered that
appellant “[c]ommit no offense against the laws of this or any other State or of the
United States”; “[n]ot use, possess, or consume any illegal drug or prescription not
prescribed to [Appellant] by a medical professional”; and “[a]bide by the rules and
regulations of the Harris County Community Supervision and Corrections
Department (hereinafter referred to as HCCSCD).” The trial court also ordered that
appellant successfully complete residential treatment at the HCCSCD facility Young
Men About Change (“YMAC”).
The State moved to adjudicate appellant’s guilt in each case, alleging that he
violated the conditions of his community supervision by: (1) committing assault;
(2) possessing illegal drugs or drugs not prescribed to him; and (3) violating the rules
and regulations of the YMAC program. At the hearing on the adjudication
proceedings, the State presented the testimony of two witnesses, Isaiah Jones,
appellant’s YMAC probation officer, and Dionne Sims, a direct care monitor at the
YMAC facility, who testified to the following.
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Shortly after appellant arrived at the YMAC residential facility, Jones
explained YMAC’s rules, procedures, and expectations to appellant, as well as the
consequences for violating any of YMAC’s regulations. Jones gave appellant a
handbook detailing YMAC’s regulations, and appellant signed a document
indicating that he understood the facility’s rules. Among YMAC’s various rules and
regulations, all residents must take prescribed medication in front of nurses in the
medical section of the facility. YMAC forbids residents from “cheeking”—stashing
medication in their mouths to take later or for other purposes—and also prohibits
residents from keeping medication on their person or in their dormitory bunks.
While appellant was in the custody of YMAC, Sims conducted patrols
through the dormitory as part of his job “to make sure that [YMAC]’s clients are
adhering to the policies and procedures of the campus.” During one of his patrols,
Sims saw appellant spit pills into his hand, count them out, stuff them into one of his
shoes, and tuck the shoes under his dormitory bunk before leaving the dorm to attend
a required class. When appellant was gone, Sims retrieved appellant’s shoes,
searched them, and found prescription pills—later identified as eight Atarax pills
and one Trazodone pill—under the insole of appellant’s right shoe. These pills
appeared “wet,” “stuck together,” and “semi-dissolving.” Sims collected the pills
and notified his supervisor. Neither appellant nor anyone else in his dormitory was
prescribed both of these medications at the same time.
Appellant’s trial counsel called two witnesses, Robert Moran, who was at
YMAC while appellant was there, and John McCoy, who was incarcerated in the
Harris County Jail in June 2020 when appellant allegedly assaulted another inmate.
Moran testified that he put at least four of his pills in appellant’s shoes on the date
that Sims found the prescription medications there. Moran stated that he takes five
kinds of prescription medications, although he conceded he is not prescribed Atarax
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or Trazodone and does not take either of these medications. McCoy testified that,
while he was incarcerated with appellant, McCoy and two other inmates got into an
altercation while appellant was present. According to McCoy, although appellant
was charged with assault for his involvement in this incident, appellant only tried to
intervene and break up the fight and did not join in the assault.
After the hearing, the trial court found appellant guilty of both offenses and
sentenced him to ten years’ confinement for the credit card abuse case and twenty-
five years’ confinement for the aggravated robbery case, with the sentences to run
concurrently. Appellant filed a motion for new trial in each case, both of which were
overruled by operation of law without a hearing.
Appellant timely appealed.
Standard of Review
We examine claims of ineffective assistance of counsel under the familiar
two-prong standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). See
Robison v. State, 461 S.W.3d 194, 202 (Tex. App.—Houston [14th Dist.] 2015, pet.
ref’d). Under Strickland, the defendant must prove that his trial counsel’s
representation was deficient and that the deficient performance was so serious that
it deprived him of a fair trial. Strickland, 466 U.S. at 687. Counsel’s representation
is deficient if it falls below an objective standard of reasonableness. Id. at 688. But
a deficient performance will deprive the defendant of a fair trial only if it prejudices
the defense. Id. at 691-92. To demonstrate prejudice, the defendant must show a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Id. at 694. Failure to make the required
showing of either deficient performance or sufficient prejudice defeats the claim of
ineffectiveness. Id. at 697.
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Our review of trial counsel’s representation is highly deferential and presumes
that counsel’s actions fell within the wide range of reasonable professional
assistance. See Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007);
Donald v. State, 543 S.W.3d 466, 477 (Tex. App.—Houston [14th Dist.] 2018, no
pet.) (op. on reh’g). If counsel’s reasons for his or her conduct do not appear in the
record and there exists at least the possibility that the conduct could have been
grounded in legitimate trial strategy, we defer to counsel’s decisions and deny relief
on an ineffective assistance claim on direct appeal. See Garza, 213 S.W.3d at 348.
If counsel has not had an opportunity to explain the challenged actions, we may not
find deficient performance unless the 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). In the majority of cases, the record on direct appeal is simply
undeveloped and insufficient to permit a reviewing court to fairly evaluate the merits
of an ineffective assistance of counsel claim. See Lopez v. State, 343 S.W.3d 137,
143 (Tex. Crim. App. 2011); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002); Robison, 461 S.W.3d at 203.
Analysis
Appellant urges that his counsel was ineffective in three ways: (1) his trial
counsel failed to adequately investigate and prepare for appellant’s adjudication
proceedings because appellant informed his counsel that there was “evidence at the
facility of which [sic] he was housed that would have proven the allegations to be
untrue” but his counsel “did not retrieve such evidence”; (2) his counsel failed to
call witnesses to testify in the adjudication proceedings even though appellant
informed his counsel about these witnesses; and (3) his counsel failed to call
character witnesses on his behalf.
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Failure to conduct an adequate investigation may constitute ineffective
assistance of counsel. See Wiggins v. Smith, 539 U.S. 510, 521-23 (2003). As the
Supreme Court said in Strickland, “[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” 466 U.S. at 691. A claim for ineffective assistance based on trial
counsel’s failure to investigate generally fails absent a showing of what the
investigation would have revealed that reasonably could have changed the result of
the case. Stokes v. State, 298 S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.]
2009, pet. ref’d) (citing Cooks v. State, 240 S.W.3d 906, 912 (Tex. Crim. App.
2007)).
Appellant’s first contention that his trial counsel was deficient for failing to
conduct an adequate investigation and secure evidence fails because the record is
entirely silent as to whether counsel failed to investigate and the evidence that likely
would have been obtained from any investigation counsel should have but failed to
perform. For example, nothing in the record reveals whether his trial counsel
attempted to obtain the evidence appellant says would have proven the allegations
untrue. Nor has appellant described the nature of the allegedly exculpatory evidence
in either his motion for new trial or his appellate brief. When, as here, the record is
silent regarding the purported inadequacy of defense counsel’s investigation efforts,
we may not assume that counsel failed to conduct a reasonable investigation. 1 See,
e.g., Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Guillory v.
State, 652 S.W.3d 499, 505-06 (Tex. App.—Houston [14th Dist.] 2022, no pet. h.)
(per curiam) (abatement order on reh’g) (“When the record is silent as to counsel’s
trial strategy, we may not speculate about why counsel acted as he did.”); Brown v.
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Moreover, appellant’s trial counsel presented two witnesses, Moran and McCoy, whose
testimony, if believed, would have cast doubt on the allegations against appellant.
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State, 129 S.W.3d 762, 767 (Tex. App.—Houston [1st Dist.] 2004, no pet.)
(explaining that, in the absence of any affirmative evidence that appellant’s counsel
failed to investigate, appellate court may not assume trial counsel made no
investigation).
As to appellant’s complaints about his trial counsel’s failure to call witnesses
on his behalf, such a claim “cannot succeed absent a showing that the witness was
available to testify and that the witness’s testimony would have benefitted the
defense.” Stokes v. State, 208 S.W.3d 428, 431 (Tex. App.—Houston [14th Dist.]
2009, pet. ref’d) (citing Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App.
2007)). Although appellant filed a motion for new trial, he failed to identify any
beneficial witnesses that were available to testify. See id. His bare assertions on
appeal that he provided his trial counsel “with various names that would serve as
witnesses to the allegations brought while Appellant was a residence [sic] in the
YMAC program” and “various names of witnesses that would be supportive with
respect to his character” are conclusory and insufficient to establish ineffective
assistance by a preponderance of the evidence. See id. at 432.
Under these circumstances, appellant simply has not shown that his trial
counsel was effective. We overrule appellant’s appellate issue.
Conclusion
Having overruled appellant’s sole issue, we affirm the trial court’s judgments.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Bourliot, and Zimmerer.
Do Not Publish — Tex. R. App. P. 47.2(b).
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