In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-06-267 CR
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QUINTON KEITH GUILLORY a/k/a DELTON BAPTISTE, Appellant
V.
THE STATE OF TEXAS, Appellee
Jefferson County, Texas
Trial Cause No. 83552
Pursuant to a plea bargain agreement, appellant Quinton Keith Guillory a/k/a Delton Baptiste (1) pled guilty to forgery. The trial court deferred adjudication of Guillory's guilt, placed him on community supervision for three years, and assessed a fine of $500.00. Subsequently, an administrative hearing officer recommended that Guillory's community supervision be extended for one year after the officer found that Guillory had failed to perform community service and failed to pay fees. The trial court adopted the hearing officer's recommendation and extended the term of Guillory's community supervision for one year. The State later filed a motion to revoke Guillory's unadjudicated community supervision. Guillory pled "true" to two alleged violations of the conditions of his deferred adjudication order. The trial court revoked Guillory's community supervision, found him guilty of forgery, and sentenced him to eighteen months of confinement in a state jail facility. Guillory's counsel has filed an Anders brief. Counsel's brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See also High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). Counsel provided Guillory with a copy of the brief. Guillory then filed a pro se brief, in which he raises four issues. Finding no arguable error, we affirm.
In his first and second issues, Guillory argues that the extension of his community supervision by an additional year violated the Double Jeopardy clause and the 14th Amendment and was "held to be without authority." The trial court is statutorily authorized to extend the term of community supervision after determining that the defendant violated a condition of community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12 § 22(a)(2) (Vernon 2006). Therefore, these issues are not arguable.
In his third issue, Guillory contends he received ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, an appellant must satisfy a two-pronged test:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See also Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). Guillory must demonstrate a reasonable probability that, but for his counsel's errors, the outcome would have been different. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). "Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance." Id.
Guillory must prove there was no plausible professional reason for specific acts or omissions of his counsel. See id. at 836. Furthermore, "[a]ny allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). The bare record on direct appeal is usually insufficient to demonstrate "counsel's representation was so deficient . . . as to overcome the presumption that counsel's conduct was reasonable and professional." Bone, 77 S.W.3d at 833 (citation omitted). Guillory alleges his defense counsel failed to investigate or prepare his case properly. Absent an evidentiary hearing in which defense counsel is provided the opportunity to explain his actions, and in which Guillory is able to develop evidence supporting his claim of ineffective assistance, Guillory cannot overcome the presumption that counsel rendered reasonably effective assistance. Moreover, Guillory has not established that, but for counsel's conduct, the result would have been different. See id. Therefore, this issue is not an arguable one.
In his fourth issue, Guillory asserts that one of the grounds for revoking his community supervision was his failure to properly report to the community supervision department before leaving Jefferson County. Guillory asserts that his failure to properly report was due to the mandatory evacuation during Hurricane Rita. The allegation that Guillory failed to properly report before leaving the county was contained in the State's October 6, 2004, motion to revoke Guillory's unadjudicated community supervision. Hurricane Rita occurred in September of 2005. Furthermore, because this issue relates to the trial court's decision to adjudicate Guillory's guilt, we lack jurisdiction over it on direct appeal. See Hogans v. State, 176 S.W.3d 829, 832-34 (Tex. Crim. App. 2005); Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon 2006). Therefore, this issue is not an arguable one.
We have determined that the appeal is wholly frivolous. We have independently examined the clerk's record and the reporter's record, and we find no reversible error. Appointment of new counsel is not required. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Guillory is free to file a petition for discretionary review raising error by this Court in the instant appeal. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005). We affirm the trial court's judgment.
AFFIRMED.
STEVE McKEITHEN
Chief Justice
Submitted on January 24, 2007
Opinion Delivered February 14, 2007
Do Not Publish
Before McKeithen, C.J., Gaultney and Kreger, JJ.
1. In parts of the appellate record, "Baptiste" is also spelled "Batiste."