Opinion issued March 20, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-01080-CR
NO. 01-12-01081-CR
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JOSE GUADALUPE HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Case Nos. 08CR2693 & 08CR2694
MEMORANDUM OPINION
After his plea of guilty to two counts of aggravated assault with a deadly
weapon 1, the trial court deferred an adjudication of guilt and placed Jose
Guadalupe Hernandez on community supervision for six years. 2 A little more than
three years later, May 24, 2012, the State filed second amended motions to
adjudicate guilt in both causes alleging the violation of several conditions of his
probation and, on October 19, 2012, the trial court entered an order adjudicating
guilt and sentenced him to fifteen years’ on each case to run concurrently. In two
points of error, appellant contends that he received ineffective assistance because
his trial counsel failed to object to the introduction of probation violations not
pleaded by the State and to two extraneous offenses. We affirm the revocation
orders.
Background
Appellant was indicted on November 13, 2008, for two second-degree
felony counts of aggravated assault. He pleaded guilty to both charged offenses on
May 8, 2009, and the trial court deferred adjudication of guilt and placed appellant
on community supervision for six years.
1
Both second-degree felonies, the first count is cause number 08CR2693; the
second count is cause number 08CR2694.
2
In 1993, during the 73rd Legislative Session, the statutory term for probation was
changed to “community supervision.” Both terms refer to the same process and
will be used interchangeably in this opinion. Ivey v. State, 277 S.W.3d 43, 51 n.48
(Tex. Crim. App. 2009).
2
On May 24, 2012, the State filed its two second amended motions to
adjudicate guilt and revoke probation in both causes alleging several violations of
appellant’s community supervision. His conditions of community supervision
included:
1. commit no offense against the laws of the State of Texas or of any
other State, the United States or any governmental entity; and to
26. Perform 240 hours of Community Service work as approved by the
Court. Said hours shall be completed at a rate of no less than sixteen
(16) hours per month until completed.
The State alleged the following violations:
1a. On or about the 16th day of July, A.D., 2011, in Harris County,
Texas, the said Defendant, Jose Guadalupe Hernandez, then and there
intentionally prevent[ed] or obstructed[ed] Officer S. Fisher a person
the defendant knew to be a peace officer, from effecting an arrest of
the defendant, by using force against said peace officer; and
1b. On or about the 16th day of March, A.D., 2012, in Harris County,
Texas, the said Defendant, Jose Guadalupe Hernandez, did then and
there operate a motor vehicle in a public place while the said
defendant was intoxicated by reason of the introduction of alcohol
into the body; and
26. Said defendant failed to perform Community Service as approved
by the Court.
The trial court held a contested hearing on the State’s motions to adjudicate
on September 20, 2012. Celine Harris, appellant’s probation officer, and Houston
Police Department Officer Steven Fisher, testified at the adjudication portion of the
hearing. Harris testified that appellant was arrested on July 16, 2011, for resisting
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arrest. She further testified that, according to the offense report, appellant had
gone to a bar and was intoxicated. In addition to violating the first condition of his
probation (i.e., committing no offense) by resisting arrest, Harris noted that
appellant being in a bar and being intoxicated was yet another violation of two
other conditions of his community supervision. 3 Trial counsel lodged no objection
to the testimony that appellant violated his probation in this latter regard. Harris
went on to testify that appellant committed the offense of driving while intoxicated
on March 16, 2012, and that he failed to complete his community service within
the required amount of time.
Officer Fisher testified that he saw appellant, a wife, and another male go
into a nightclub at which Fisher provided security on July 16, 2011. They appeared
intoxicated when they left the bar a couple of hours later. Officer Fisher saw
appellant raise his fist and punch his wife but as he tried to arrest him for the
assault,4 appellant resisted and they fought on the ground until Officer Fisher’s
partner arrived and used his taser on appellant. Officer Fisher testified that the
police report reflects a charge of “assault contact” but that appellant was
subsequently charged with resisting arrest. Officer Fisher recounted that at the
3
The conditions of appellant’s community supervision also included (11) “never
become intoxicated” and (22) “abstain from the use of alcohol in any form at any
time and do not enter any bar, tavern, lounge or other similar place.”
4
Officer Fisher was dressed in full uniform at the time of the incident.
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time, appellant’s wife denied he hit her but had only pushed her. At the conclusion
of the hearing, the trial court found allegations 1a, 1b, and 26 true in both cause
numbers and heard evidence in the punishment phase. At the sentencing hearing
on October 18, 2012, the trial court revoked appellant’s probation and sentenced
him to fifteen years’ confinement.
Discussion
In his first and second points of error, appellant contends that his trial
counsel was ineffective because he failed to object to the introduction of (1)
probation violations not pleaded by the State in its motions to adjudicate and (2)
evidence of extraneous offenses. The State argues that trial counsel was not
ineffective for failing to object to the probation violations or extraneous offenses
because (1) the complained-of evidence arises from the same transaction alleged in
the motions to adjudicate and (2) counsel’s decision not to object to the evidence
was sound trial strategy. The State further contends that even if trial counsel had
objected, the outcome of the trial would have been the same.
Applicable Law
To prevail on a claim of ineffective assistance of counsel, an appellant must
meet the two-pronged test established by the U.S. Supreme Court in Strickland v.
Washington, 466 U.S. 668, 687–96, 104 S. Ct. 2052, 2064–69 (1984), and adopted
by Texas two years later in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim.
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App. 1986) (en banc). Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.
2011). Appellant must show that (1) counsel’s representation fell below an
objective standard of reasonableness, and (2) the deficient performance prejudiced
the defense. Lopez, 343 S.W.3d at 142. Unless appellant can prove both prongs,
trial counsel’s representation will not be found ineffective. See id.
To satisfy the first prong, appellant must prove by a preponderance of the
evidence that counsel’s performance fell below an objective standard of
reasonableness under the prevailing professional norms. Id. To prove prejudice,
appellant must show that there is a reasonable probability, or a probability
sufficient to undermine confidence in the outcome, that the result of the proceeding
would have been different. Id. The constitutional right to counsel does not mean
the right to errorless counsel. Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim.
App. 1983) (en banc). In determining whether counsel was ineffective, we
consider the totality of the circumstances of the particular case. Thompson v. State,
9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
We must make a “strong presumption that counsel’s [performance] fell
within the wide range of reasonably professional assistance.” Robertson v. State,
187 S.W.3d 475, 482 (Tex. Crim. App. 2006). In order for us to find that counsel
was ineffective, counsel’s deficiency must be affirmatively demonstrated in the
trial record. Thompson, 9 S.W.3d at 813. When such direct evidence is not
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available, an appellate court “will assume that counsel had a strategy if any
reasonably sound strategic motivation can be imagined.” Lopez, 343 S.W.3d 143.
While a single error will not typically result in a finding of ineffective assistance of
counsel, an egregious error may satisfy the Strickland prongs on its own. Id.
Analysis
Appellant first complains that trial counsel failed to object to the
introduction of violations of two specific conditions: number 11—“never become
intoxicated”; and number 22—“abstain from the use of alcohol in any form at any
time and do not enter any bar, tavern, lounge or other similar place,” despite the
fact that the State had not alleged these violations in its motions to adjudicate.
At the outset, we note that although appellant frames his first issue as one of
ineffective assistance, the gravamen of his complaint is that because the State did
not allege the probation violations in its motions to adjudicate guilt, he was without
notice of them and thus deprived of the opportunity to prepare a defense.
However, motions to revoke community supervision have never been held to the
strict pleading requirements applied to indictments. See Labelle v. State, 692
S.W.2d 102, 105 (Tex. Crim. App. 1985) (en banc). A motion to revoke need only
give fair notice of the alleged violation in order to comport with minimum due
process. See id. at n.2. Probation, in fact, may be revoked for a violation not
alleged in the revocation motion, provided the violation was one necessarily
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encompassed by the violations alleged. See Cleland v. State, 572 S.W.2d 673,
675–76 (Tex. Crim. App. 1978); Chacon v. State, 558 S.W.2d 874, 876 (Tex.
Crim. App. 1977).
Here, the violations for which appellant complains to be without notice are
intoxication and his presence in a bar. These violations were committed during the
resisting arrest offense alleged as violation (1a) in the State’s motions to adjudicate
for which appellant was convicted. Further, appellant signed stipulations of
evidence reflecting his conviction for resisting arrest in which he waived his rights
to appearance, confrontation, and cross-examination of witnesses related to the
evidence included in his resisting arrest conviction. Appellant, then, can hardly
complain to have been deprived of notice of these allegations. See LaBelle, 692
S.W.2d at 105 n.2 (stating allegations contained in motion to revoke community
supervision must give fair notice to defendant of violation involved so as to enable
defendant to prepare defense). Appellant’s first point of error is overruled.
In his second point of error, appellant contends that his trial counsel was
ineffective for failing to object to the introduction of extraneous offense evidence
that he had assaulted his wife and a peace officer. The State argues that (1) trial
counsel did object, (2) these offenses are part of the same violation alleged in its
motions to adjudicate, (3) trial counsel’s decision not to object was sound trial
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strategy, and (4) the outcome would not have been different but for trial counsel’s
alleged error.
At the hearing, Officer Fisher testified to the events leading up to appellant’s
charge for resisting arrest and clarified that although the police report states
“assault contact,” appellant was subsequently charged with resisting arrest.
That trial counsel’s failure to object to these “extraneous offenses”
constitutes ineffective assistance is a mistaken proposition for three reasons. First,
the record reflects that when the officer began to recount the events leading to
appellant’s arrest, appellant’s attorney did object on the grounds that appellant had
already admitted to the violation and that such questioning would be relevant only
to punishment. That objection was overruled. Second, the evidence pertaining to
appellant’s assault of Officer Fisher and appellant’s wife constitutes “same
transaction contextual evidence” which is admissible as an exception under Rule of
Evidence 404(b). See Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993)
(en banc) (quotations omitted). Here, appellant’s assault of his wife and of Officer
Fisher were part of the same incident and were necessary to the court’s
understanding of the charged offense. See id. (noting same transaction contextual
evidence is admissible as exception to Rule 404(b) where “several crimes are
intermixed, or blended with one another, or connected so that they form an
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indivisible criminal transaction, and full proof by testimony, whether direct or
circumstantial, of any one of them cannot be given without showing the others.”)
Finally, even if trial counsel had not objected to the alleged extraneous
offenses, appellant has failed to prove by a preponderance of the evidence that the
trial counsel’s performance fell below an objective standard of reasonableness
under the prevailing professional norms. See Lopez, 343 S.W.3d at 143.
Ineffective assistance allegations must be firmly founded in the record which must
affirmatively demonstrate the alleged ineffectiveness. See Goodspeeed v. State,
187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Here, appellant filed no motion for
new trial or otherwise attempt to make a record of the alleged ineffective
assistance. Where the record is silent, as here, we must make a strong presumption
that counsel’s actions were motivated by sound trial strategy. Robertson, 187
S.W.3d at 482.
Based on the record before us, appellant has not overcome the strong
presumption that his trial counsel’s performance was within the range of
reasonable professional assistance. See Lopez, 343 S.W.3d at 142; Robertson, 187
S.W.3d at 482; Thompson, 9 S.W.3d at 813. Having failed to satisfy the first prong
of the Strickland test, we need not consider the second prong. See Strickland, 466
U.S. at 687–96, 104 S. Ct. at 2064–69; Lopez, 343 S.W.3d at 137. We overrule
appellant’s point of error.
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Conclusion
We affirm the trial court’s judgments.
Jim Sharp
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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