Eric Maddox v. State

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-08-020-CR

ERIC MADDOX APPELLANT

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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MEMORANDUM OPINION^{^[1]}

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Introduction

Appellant Eric Maddox appeals his conviction for possessing while intending to deliver cocaine. See Tex. Health & Safety Code Ann. '' 481.102(3)(D), 481.112(a) (Vernon 2003 & Supp. 2008). In four issues, he contends that the trial court=s judgment is defective and its findings are unsupportable, that the trial court erred by admitting hearsay evidence, and that he was denied effective assistance of counsel. We reform, and as reformed, affirm the trial court=s judgment.

Background Facts

In January 2001, a Tarrant County grand jury indicted appellant of possessing while intending to deliver between four and two hundred grams of cocaine (a first degree felony). See id. ' 481.112(d). In September of that year, appellant pled guilty. In accordance with his plea, the trial court placed appellant on deferred adjudication community supervision for ten years.

In November 2007, the State filed a petition to proceed to the adjudication of appellant=s cocaine offense. The next month, the State filed its first amended petition, alleging in five paragraphs that appellant violated the terms of his community supervision by possessing methamphetamine, testing positive for THC^{^[2]} and cocaine, and failing to report to his community supervision office in person and by mail on several monthly occasions. On January 10, 2008, the State filed a second amended petition, alleging these same facts and adding another assertion relating to marijuana possession.

On the day the State filed its second amended petition, the trial court conducted an evidentiary hearing on whether to adjudicate appellant guilty; however, the State proceeded on its first amended petition. At the hearing, the State called Rodney Knotts, a court officer with the Tarrant County Adult Probation Department. Based on records he brought with him,^{^[3]} Officer Knotts testified that the department informed appellant of the conditions of his community supervision, that appellant violated the conditions as alleged in the State=s petition, and that appellant had been Asanctioned@ through a brief stay in jail for these violations. The State then called a Plano police officer who testified that he discovered marijuana along with a substantial amount of pills in a locked glove box within appellant=s vehicle. Finally, the State called a laboratory technician who stated that the pills found in appellant=s vehicle tested positive for methamphetamine and methylenedioxymethamphetamine (MDMA), which are controlled substances.

The trial court found that four of the five allegations contained in the State=s first amended petition were true. After appellant called two witnesses (his wife and his mother) on the issue of punishment and counsel presented closing arguments, the trial court formally found appellant guilty and sentenced him to twenty years= confinement. Later that day, the trial court entered a judgment reflecting its decisions. The judgment referred to allegations contained in the State=s second amended petition as the Agrounds for revocation.@ Appellant filed notice of this appeal.

Standard of Review

Our review of an order revoking community supervision is limited to determining whether the trial court abused its discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Allbright v. State, 13 S.W.3d 817, 818 (Tex. App.CFort Worth 2000, pet. ref=d); see Oveal v. State, No. 14‑07‑00755‑CR, 2008 WL 5085405, at *2 (Tex. App.CHouston [14th Dist.] Nov. 25, 2008, no pet.) (mem. op., not designated for publication) (applying the abuse of discretion standard to the granting of a motion to adjudicate). An abuse of discretion occurs when the trial judge=s decision is so wrong that it falls outside the zone within which reasonable persons might disagree. Allbright, 13 S.W.3d at 818.

Defective Judgment

In his first issue, appellant contends that the judgment adjudicating his guilt is defective because it states that it is based on the State=s second amended petition, while the State actually litigated its first amended petition. Appellant asserts that the result of this error is that he was adjudicated on allegations of which Ano evidence was presented and no argument was heard.@ The State concedes and we hold that the judgment adjudicating appellant=s guilt errs by stating that the trial court adjudicated appellant under the State=s second amended petition. However, the State contends that the error may be corrected by this court=s modification of the trial court=s judgment. We agree.

Appellate courts have the authority to correct and modify a trial court=s judgment in order to make the record speak the truth. See Tex. R. App. P. 43.2(b); Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986); Nelson v. State, 149 S.W.3d 206, 213 (Tex. App.CFort Worth 2004, no pet.) (stating that an appellate court may correct and reform a judgment Ato make the judgment congruent with the record@); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.CDallas 1991, pet. ref=d) (en banc) (explaining that A[a]ppellate courts have the power to reform whatever the trial court could have corrected by a judgment nunc pro tunc where the evidence necessary to correct the judgment appears in the record@). Such authority is not dependent upon a party=s request or objection. See Tyler v. State, 137 S.W.3d 261, 267B68 (Tex. App.CHouston [1st Dist.] 2004, no pet.); Asberry, 813 S.W.2d at 529B30.

Appellant has cited no authority holding that the incorrect recitation contained in the judgment adjudicating his guilt is reversible error or cannot be corrected as indicated by the authority cited above. Instead, he admits that the trial court heard evidence and made its determinations based on the State=s first amended petition; the record demonstrates the same. For instance, at the hearing on the petition, appellant=s counsel conferred with appellant, agreed to litigate the first amended petition, and announced ready. The trial court then read the allegations specifically contained in the first amended petition to appellant. Appellant pled Atrue@to testing positive for THC, and he pled Anot true@ to the remaining allegations. Closing arguments from appellant and the State concerned the allegations contained in the five paragraphs of the first amended petition.

Because the Atruth@ of the record is that the parties litigated the first amended petition and that the court considered that petition to find violations of paragraphs one, two, four, and five, we sustain appellant=s first issue to the extent that we modify the judgment adjudicating guilt to reflect the proper grounds for revocation as stated in those paragraphs of that petition.^{^[4]} See Tex.R. App. P. 43.2(b); Banks, 708 S.W.2d at 462.

Evidentiary Sufficiency and Hearsay Objections

In his second and fourth issues, appellant asserts that the evidence presented at trial was insufficient to prove a violation of three paragraphs of the State=s first amended petition.^{^[5]}

Sufficient evidence of one violation is adequate to affirm a trial court=s order revoking community supervision. See Watts v. State, 645 S.W.2d 461, 463 (Tex. Crim. App. 1983) (declining to consider the sufficiency of evidence supporting one revocation ground when the judgment was supportable by another violation); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980). In other words, to overturn a revocation order, a defendant must successfully challenge each finding on which the revocation is based. Harris v. State, 160 S.W.3d 621, 626 (Tex. App.CWaco 2005, pet. struck); Joseph v. State, 3 S.W.3d 627, 640 (Tex. App.CHouston [14th Dist.] 1999, no pet.).

Also, a Atrue@ plea to any one of the alleged violations contained in a motion to proceed to adjudication is sufficient to support the trial court=s order revoking community supervision. See Atchison v. State, 124 S.W.3d 755, 758 n.4 (Tex. App.CAustin 2003, pet. ref=d); Moore v. State, 11 S.W.3d 495, 498 n.1 (Tex. App.CHouston [14th Dist.] 2000, no pet.); Wilkerson v. State, 731 S.W.2d 752, 753 (Tex. App.CFort Worth 1987, no pet.). Once a Atrue@ plea has been entered, a defendant may not challenge the sufficiency of the evidence to support the subsequent revocation. See Moore, 11 S.W.3d at 498 n.1 (citing Rincon v. State, 615 S.W.2d 746, 747 (Tex. Crim. App. [Panel Op.] 1981)).

Here, appellant pled Atrue@ to testing positive for THC.^{^[6]} The trial court found that allegation to be true, and appellant has not challenged the trial court=s finding in this regard. Therefore, the trial court did not abuse its discretion by adjudicating appellant guilty, and appellant=s issues related to findings made and evidence presented on the other paragraphs of the State=s petition are rendered immaterial. See Watts, 645 S.W.2d at 463; Moore, 11 S.W.3d at 498 n.1. Accordingly, we overrule appellant=s second and fourth issues.

Ineffective Assistance of Counsel

In his third issue, appellant argues that his Atrue@ plea was involuntary because he was denied effective assistance of counsel.

To establish ineffective assistance of counsel, appellant must show by a preponderance of the evidence that his counsel=s representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel=s deficiency, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 62B63 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether counsel=s assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. See Strickland, 466 U.S. at 688B89, 104 S. Ct. at 2065. Review of counsel=s representation is highly deferential, and the reviewing court indulges a strong presumption that counsel=s conduct fell within a wide range of reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at 813B14. AIn the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel=s actions.@ Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the presumption of reasonable professional assistance, Aany allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@ Id. (quoting Thompson, 9 S.W.3d at 813).

The second prong of Strickland requires a showing that counsel=s errors were so serious that they deprived the defendant of a fair and reliable trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, appellant must show there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding in which the result is being challenged. Id. at 697, 104 S. Ct. at 2070. A defendant=s plea is not voluntary when it results from ineffective assistance of counsel. Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980).

Appellant contends that the record demonstrates his trial counsel=s lack of preparation to proceed on the State=s first amended petition, which he claims leads to the inference that his counsel did not advise him of the effect of pleading Atrue.@ Alternatively, he asserts that even if his trial counsel did advise him of the effect of his Atrue@ plea, no possible strategic advantage could have been gained through the plea.

Towards the beginning of the hearing on the State=s petition, the following exchange occurred:

[DEFENSE COUNSEL]: Your Honor, we had anticipated that ‑‑ going on the State=s second amended petition of ‑‑ my client made a decision, based on my advice, to wait ten days to prepare for the second amended petition that we had notice of yesterday. My understanding is the Court is saying that we are going on the first amended petition.

THE COURT: See, I=m glad that y=all had notice yesterday because it=s news to me. The one I have set is the first amended petition. That=s the one that we=ve had set.

[DEFENSE COUNSEL]: That=s correct, Your Honor. And based on my advice to my client, my client has ‑‑ had decided to not waive his ten days anticipating that the second amended petition would be the petition that we adjudicated. We are attempting to get all of our witnesses here. They should be here today. I=m not sure exactly what time they will be here. They are all in Dallas County and Collin County, but we are working on getting them here. So, at this present time, we are not prepared, although we may be prepared a little later this morning or early this afternoon.

THE COURT: So, are you asking for ten days and you want a hearing on the first one, and he stays in custody until the hearing? I mean, because ‑‑ I mean, that=s part of the problem is he=s in jail pending this motion?

[DEFENSE COUNSEL]: That=s correct.

THE COURT: And if you want your ten days and you withdraw your request for a bond, then that=s fine. Do you want to go over and talk to him? Feel free to and talk to him. That=s fine.

(Sotto voce discussion between the Defendant and Mr. Johnston.)

[DEFENSE COUNSEL]: We will proceed today, Your Honor, on the first amended petition.

THE COURT: Okay. Go ahead and put him up.

The context of this record indicates that appellant=s counsel was not unprepared to proceed with litigating the State=s first amended petition in the sense that he had either not discussed the petition with appellant or was unaware of its allegations, as appellant asserts in his brief. Rather, the lack of preparation expressed by counsel only concerned bringing planned witnesses to trial, and after a discussion with appellant, counsel believed he could proceed.

There is simply nothing in the record to support appellant=s assertion that he and his trial counsel Ahad not discussed [his] pleas and their implications@ or that appellant was not Ainformed of the nature of the proceeding.@ It is inappropriate for an appellate court to infer ineffective assistance based upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

Next, even if appellant=s trial counsel did not advise him of the effects of his pleas, the trial court did, as the following colloquy demonstrates:

THE COURT: It goes on to say in Paragraph 2, that you violated that, on or about November 16th, 2007, by testing positive for THC. Is that true or not true?

THE DEFENDANT: True, Your Honor.

THE COURT: True?