Keith L. McClellan v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-10-00397-CR

KEITH L. MCCLELLAN APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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I. Introduction

Appellant Keith L. McClellan appeals the trial court’s judgment adjudicating

his guilt and sentencing him to twenty years in prison. Appellant raises two

issues, asserting that the trial court abused its discretion by admitting

inadmissible hearsay evidence and that his counsel was ineffective at the

adjudication hearing. We affirm.

II. Procedural and Factual Background
1
See Tex. R. App. P. 47.4.
 In March 2005, a Tarrant County grand jury indicted Appellant on charges

of aggravated assault with a deadly weapon. Pursuant to a plea bargain

agreement, the trial court placed Appellant on deferred adjudication community

supervision for five years beginning January 19, 2006. In March 2010, the State

filed a petition to proceed to adjudication, alleging in eight paragraphs that

Appellant violated the terms and conditions of his community supervision. The

trial court held a hearing on the State’s petition to adjudicate on July 7, 2010.

Appellant pleaded “not true” to each allegation.

At the hearing, Sergeant Gregory Morgan testified that he was an

investigator with the Hamilton Sheriff’s Department in Cincinnati, Ohio, and that

in January 2010 Appellant became a “target” in an on-going investigation of “a

local group of individuals that were taking stolen items in trade for heroin in

Cincinnati.”2 With the help of a confidential informant, officials recorded phone

calls Appellant made and received while in Cincinnati on January 12, 2010, in

which he offered to sell the informant heroin. During these calls, the informant

asked for two ounces of heroin, and Appellant explained that he could sell him a

half ounce for $1000 and that another shipment would be arriving the next day.

Appellant then told the informant he was on his way to meet him. During the

2
Tarrant County Probation Officer Loretta Wilson testified that she began
supervising Appellant in March 2009, and that she issued a permit to Appellant to
travel to Cincinnati, Ohio, in January 2010, for the birth of his son. She had
previously issued permits for Appellant to travel to Cincinnati in June, August,
and October 2009.

2
phone calls, a team of narcotics officers was conducting surveillance outside the

Cincinnati residence where Appellant was staying.3 When Appellant exited the

residence and drove away, the narcotics team followed.

Cincinnati Police Officer Chris Perry (assigned to this regional narcotics

team) testified that he stopped Appellant at the request of the surveillance team

that same day, arrested him, and transported him to the jail in the backseat of his

marked squad car. Appellant possessed $2200 in cash upon arrest. 4 Officer

Perry testified that during the drive, Appellant was moving around quite a bit,

including bending at the waist, and moving his feet around. When Officer Perry

searched the car, he found a balled-up plastic baggie in a corner of the

floorboard that had not been there before Appellant’s arrest. A chemist with the

Hamilton County crime laboratory determined the contents to be a half ounce (14

grams) of heroin.

The narcotics team executed a search warrant for the residence.

Cincinnati Police Officer Paul Fangman testified that officers found a .50 caliber

Desert Eagle pistol (with a loaded magazine inside) under a couch cushion in the

3
The confidential informant told officials that Appellant was staying in the
residence while in town; the surveillance team saw Appellant go in and out of the
residence; and inside the residence officials found luggage, clothing big enough
to fit Appellant’s “large frame,” Appellant’s birth certificate, and paperwork
regarding Appellant’s Tarrant County community supervision. There was also
testimony that other people had been seen inside the residence.
4
Probation officer Wilson testified that Appellant told her he was working
forty hours a week at K & B Family Cleaners for $9.00 an hour.

3
first floor living room of the small, single-family, two-story residence. Upstairs,

Officer Fangman found a .9 millimeter handgun on top of a nightstand in one of

two bedrooms. In this bedroom, Officer Fangman found a portfolio of documents

on the floor containing Appellant’s birth certificate, bank statements in Appellant’s

name, numerous receipts (some showing partial credit card numbers that

matched Appellant’s credit card number), and additional personal paperwork,

including several documents regarding Appellant’s Tarrant County community

supervision. Officer Fangman testified that it was very common for drug dealers

to have firearms because heroin is very expensive, and “[d]rug traffickers are —

are afraid of each other due to the fact that there’s often robberies involved

between drug dealers. Other drug dealers know that — that they have

something of value and there’s much money to be made selling heroin.” In the

kitchen, officers found a digital scale and small unused glassine bags. Sergeant

Morgan testified that, based on his training and experience, these types of bags

are used by drug dealers in Cincinnati to distribute small amounts of heroin and

cocaine, and Officer Perry testified that both drug traffickers and drug abusers

often possess these types of scales.

Appellant’s mother, Sandra McMorris, testified that Appellant is very

intelligent and bright, that she was upset that he got “caught up in this mess with

some of his friends,” and that “I really don’t believe that [Appellant] should serve

a lot of time, sir. He’s a good boy. He really is, and he’s been taking care of

me.” McMorris testified that she and Appellant bought junk vehicles, fixed them

4
up, and sold them for a “nice profit.” McMorris acknowledged on cross-

examination, however, that she knew that the sheriff’s department in Ohio had

seized approximately one hundred thousand dollars from different bank accounts

belonging to Appellant, noting that “some of those bank accounts, I know the

money came from those sales of vehicles because I assisted in selling some of

those vehicles here in the state of Texas.”

The trial court found six of the eight paragraphs in the petition true,

adjudicated Appellant guilty, and sentenced him to twenty years in prison. The

trial court found four new-offense allegations to be true, including in part that on

January 12–13, 2010, in Ohio (Hamilton County) Appellant (1) altered, destroyed,

concealed, or removed heroin to impair its value or availability as evidence in

such proceeding or investigation, knowing that an official proceeding or

investigation was in progress or was about to be or likely to be instituted

(allegation one); (2) offered to sell fourteen grams of heroin (allegation three); (3)

knowingly prepared for shipment, shipped, transported, delivered, or prepared for

distribution fourteen grams of heroin, when he knew or had reasonable cause to

believe that the heroin was intended for sale or resale by Appellant or another

person (allegation four); and (4) knowingly obtained, possessed or used fourteen

grams of heroin (allegation five). The trial court also found that Appellant violated

allegation seven by knowingly possessing a firearm away from his residence on

or about January 12, 2010.

III. Admissibility of Evidence

5
 In his first issue, Appellant asserts that the trial court abused its discretion

by admitting and considering inadmissible hearsay. Appellant complains of the

trial court’s admitting (1) several receipts from drug and grocery stores in

California showing the purchase of Bounce dryer sheets, Super Glue, “tubes,”

and “bottles” in October and November 2009 (State’s Exhibits 1–4); (2)

Greyhound Bus Line receipts and itineraries with Appellant’s name printed on

them for travel on August 28 and 29, 2009, from Dallas to Memphis to Nashville

to Cincinnati, and on September 5 and 6, 2009, from Cincinnati to Nashville to

Dallas (State’s Exhibits 5–12); and (3) invoices with Appellant’s name printed on

them from the Quality Inn in Petaluma, California from October 7 to October 12,

2009 (State’s Exhibits 21–23). As the State notes, Appellant made hearsay

objections at various times to all of these exhibits.5

Appellant contends that the challenged receipts were admitted for the truth

of the matter asserted—i.e, that Appellant purchased these items—and that

Sergeant Morgan “then used that information to testify why the items [Appellant]

purchased were important to the drug trade.” Appellant maintains that the State

used the receipts to show he was a nationwide drug dealer and that this

evidence led directly to the trial court’s findings of “true” and the maximum

sentence of twenty years’ confinement. Appellant refers to the trial court’s

5
The State asserts, however, that the objections were untimely and that
any error was cured when Sergeant Morgan testified to the contents of the
exhibits without objection. Because we determine that the admission of the
receipts was harmless, we do not address the State’s preservation arguments.

6
comment in adjudicating his guilt that, “You knew when you started dealing drugs

what you were doing” and the State’s closing argument that Appellant is “a drug

dealer. He’s now carried across three states. And I suspect, based on the

paperwork in front of you, that he’s been going coast to coast with this.”

A. Applicable Law

The State has the burden to prove by a preponderance of the evidence the

allegations in a petition to proceed to adjudication.6 See Rickels v. State, 202

S.W.3d 759, 763 (Tex. Crim. App. 2006); Miles v. State, 343 S.W.3d 908, 912

(Tex. App.—Fort Worth 2011, no pet.). This standard is met when the greater

weight of the credible evidence before the trial court supports a reasonable belief

that a condition of community supervision has been violated. Rickels, 202

S.W.3d at 763. Thus, our review of an order adjudicating guilt is limited to

determining whether the trial court abused its discretion by concluding that the

appellant violated a condition of his community supervision. Id.; Miles, 343

S.W.3d at 912. Proof of any one alleged violation is sufficient to support an

adjudication order. Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009);

Leach v. State, 170 S.W.3d 669, 672 (Tex. App.—Fort Worth 2005, pet. ref’d).

“To overturn a revocation order, a defendant must successfully challenge each

6
The decision to proceed to an adjudication of guilt and revoke deferred
adjudication community supervision is reviewable in the same manner as a
revocation of ordinary community supervision. See Tex. Code Crim. Proc. Ann.
art. 42.12, ' 5(b) (West Supp. 2011); Cantu v. State, 339 S.W.3d 688, 691 (Tex.
App.—Fort Worth 2011, no pet.).

7
finding on which the revocation is based.” Harris v. State, 160 S.W.3d 621, 626

(Tex. App.—Waco 2005, pet. dism’d) (citing Jones v State, 571 S.W.2d 191,

193–94 (Tex. Crim. App. [Panel Op.] 1978)). Once a trial court proceeds to

adjudication of guilt previously deferred, it is restricted in the sentence it imposes

only by the relevant statutory limits. Von Schounmacher v. State, 5 S.W.3d 221,

223 (Tex. Crim. App. 1999); Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort

Worth 2009, pet. ref’d) (holding that punishment imposed within statutory limits is

generally not subject to excessiveness challenge).

B. Analysis

Assuming without deciding that the trial court erred by admitting the

challenged receipts, the error was harmless because the remainder of the

admissible evidence was sufficient to support the trial court’s decision to revoke

Appellant’s community supervision, adjudicate his guilt, and sentence him to

twenty years in prison. See Tex. R. App. P. 44.2(b) (providing that any non-

constitutional error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded); cf. Clay v. State, No. 02-10-00490-CR,

2012 WL 503513, at *9 (Tex. App.—Fort Worth Feb. 16, 2012, no pet. h.).

(Dauphinot, J., dissenting) (“Because admissible evidence did not otherwise

satisfy the State’s burden of proof, I would hold harmful the trial court’s error in

admitting the documents purporting to come from the Louisiana community

supervision department and the testimony about them and further hold that the

trial court abused its discretion by adjudicating Appellant’s guilt.”).

8
 For example, in support of its first allegation—that Appellant tampered with

evidence so that it would not be available as evidence—and its fifth allegation—

that Appellant possessed fourteen grams of heroin—the State presented Officer

Perry’s testimony that Appellant attempted to hide a package (verified by a

chemist to be heroin) in Officer Perry’s squad car that had not been in the car

prior to Appellant’s arrest. In support of its third allegation—that Appellant

offered to sell fourteen grams of heroin—the State presented tape recorded

conversations between Appellant and a confidential informant. These same

recorded conversations also supported the State’s fourth allegation—that

Appellant prepared heroin for shipment, transport, or distribution—as did the

following testimony:

A. [Sergeant Morgan]: The CI made it very clear on the phone calls
that we played that he needed the drugs because he had clients that
were wanting to purchase from him.

Q. [State]: This wasn’t personal use. He wanted to resell them?

A. Oh, absolutely. And I think at one point in the recorded calls that
[Appellant] wanted him to hurry up and distribute that, collect his
money, because he had a bigger load — or I believe he called it “a
boat” coming in the next day.

Q. Is it clear from the phone calls that you heard and [Appellant]
talking that he was knowingly prepared for shipment, shipped,
transported or delivered or prepared for distribution a Schedule I
controlled substance; to-wit, heroin, and he knew or had reason to
— cause to believe that the controlled substance was intended for
sell or resell [sic] by him or by somebody else?

A. Absolutely.

9
 In support of its seventh allegation—that Appellant violated his community

supervision by knowingly possessing a firearm away from his residence on or

about January 12, 2010—the State presented evidence that one of the two guns

found in the residence was in a bedroom containing Appellant’s birth certificate

and his community supervision paperwork. Thus, the trial court’s adjudication

order is supported by admissible evidence that Appellant violated several of the

conditions of his community supervision, and Appellant does not specifically

challenge the trial court’s findings as to these allegations. See Smith, 286

S.W.3d at 342; Harris, 160 S.W.3d at 626. Thus, the record does not support

Appellant’s assertion that the challenged receipts led directly to the finding of

“true” to the State’s allegations.

Additionally, the record does not support Appellant’s assertion that the

challenged receipts and associated testimony—which he asserts were “the only

evidence” the State could produce showing he went to California, purchased

masking agents, or purchased bins to transport the drugs for distribution—led to

the imposition of the maximum sentence. Appellant faced a possible sentence of

twenty years’ imprisonment for the second-degree aggravated assault to which

he pleaded guilty, and the trial court assessed the maximum punishment. See

Tex. Penal Code Ann. ' 12.33(a) (West 2011). Generally, as long as a sentence

is within the statutory range of punishment and has a factual basis in the record,

it will not be disturbed on appeal. Jackson v. State, 680 S.W.2d 809, 814 (Tex.

Crim. App. 1984); see Freeman v. State, No. 02-09-00093-CR, 2009 WL

10
4755169, at *3 (Tex. App.—Fort Worth Dec. 10, 2009, pet. ref’d) (mem. op., not

designated for publication).

In adjudicating Appellant’s guilt and sentencing him, the trial court stated,

[I]’m going to be very blunt with you. You knew what you were
signing up for when you went onto probation. You knew when you
started dealing drugs what you were doing. You knew the danger
that you were facing by going out there and engaging in that
behavior.

The .50 caliber gun, the gun in the house, the paperwork, the
traveling, clearly indicates that there is drug dealing on a level that is
not normally seen around here. It’s seen at a federal level, which
they’re going to probably deal with you there.[7]

[I]n terms of what we do here, in terms of what we expect you to do
when you signed up, when you pled guilty to aggravated assault with
a deadly weapon, that is all true.

....

You made this choice intelligently, voluntarily on your part and
this is our decision here with regard to your behavior here.

As demonstrated above, the State introduced substantial evidence that

Appellant was dealing drugs on a fairly high level (at a minimum in Ohio) while on

community supervision. While the trial court cited Appellant’s traveling as a part

of its consideration, the totality of the evidence supports the trial court’s

sentence. Moreover, Sergeant Morgan provided unobjected-to testimony that

Appellant travelled to and made purchases related to his drug dealing in

7
Sergeant Morgan testified that his narcotics task force worked on local
and federal cases. In closing arguments, Appellant’s counsel argued to the
court, “We also know that once he’s done here, there’s a hold on him in Ohio . . .
he’s going to be going there doing — doing some sort of federal time.”

11
California.8 For instance, he testified without objection that “[t]he receipts

became important because it gave us the travel receipts for the actual location at

the time that the receipts — the — the part of the country that the receipts were

taken at the time, which in this particular case we’re talking about California.”

When asked whether the purchases and travel to California were important,

Sergeant Morgan testified without objection, “Absolutely. . . . Because these are

items that are consistent with our intel of someone that is distributing narcotics

across the country.” Sergeant Morgan also testified without objection that he

found receipts from General Nutrition Center (GNC) for big containers of

bodybuilder powders and substances in the residence and that he also found

bodybuilding substances consistent with the GNC receipts. Without objection,

Sergeant Morgan explained that “[t]he powder would be removed from the

container, a small portion, the narcotics placed inside, the Super Glue would be

used to seal the — the label to look unaltered if it was inspected, sealed back up

and shipped across the country. The dryer sheets are commonly used to mask

agents — as a masking agent to mask the odor of narcotic-detecting dogs.”

8
See Chamberlain v. State, 998 S.W.2d 230, 235 (Tex. Crim. App. 1999),
cert. denied, 528 U.S. 1082 (2000) (overruling issue concerning admission of trial
exhibit because sponsoring witness testified about the information contained in
the exhibit without objection); see also Aranda v. State, No. 13-03-00302-CR,
2004 WL 5357628, at *2 (Tex. App.—Corpus Christi Nov. 18, 2004, no pet.)
(mem. op., not designated for publication) (holding any error in admission of
hearsay exhibit harmless because same information subsequently introduced
without objection).

12
 Because the trial court’s sentence did not exceed the punishment range,

and because it had a factual basis in the record, we overrule Appellant’s first

issue. See Benjamin v. State, No. 14-08-01012-CR, 2010 WL 307921, at *3

(Tex. App.—Houston [14th Dist.] Jan. 28, 2010, no pet.) (mem. op., not

designated for publication) (considering that “Appellant’s behavior while he was

on community supervision—continuing his drug use, committing burglary, and

failing to pay his court-ordered fees—indicates a complete disregard for the

terms of his community supervision” in upholding trial court’s imposition of

sentence); see also Smith, 286 S.W.3d at 344 (“[T]he decision of what

punishment to assess after adjudicating the defendant guilty is a purely

normative process, not intrinsically factbound, and is left to the unfettered

discretion of the trial judge.”).

IV. Assistance of Counsel

In his second issue, Appellant asserts that his counsel was ineffective

during closing argument by “admit[ting] the primary issue in the case;” i.e., that

Appellant possessed heroin. Appellant asserts that this admission “forced the

Trial Court to find all of the State’s allegations concerning possession and

delivery of drugs and weapons to be true” and that the outcome of the case

would have been different if counsel had not admitted his guilt. We disagree.

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

13
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);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Appellant has

the burden to establish both of these prongs by a preponderance of the

evidence, and a failure to make either showing defeats an ineffectiveness claim.

Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). We presume that

counsel’s conduct falls within the wide range of reasonable professional

assistance, and we will find counsel’s performance deficient only if the conduct is

so outrageous that no competent attorney would have engaged in it. Andrews v.

State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).

After Appellant pleaded “not true” to the State’s first allegation, the

prosecutor interjected that Appellant had previously represented he would plead

true to the allegations and that therefore the State had not scheduled the Ohio

chemist (who tested the confiscated drugs) for the hearing. The prosecutor

explained that he would need a continuance if Appellant persisted in contesting

the allegations. Appellant’s counsel then recounted his statements to the

prosecutor that, “if you’re bringing one [witness], bring them all” and “we’ll be

willing to plead true if — if you’d offer us something.” Counsel also stated,

“[W]hen the offer was 15 [years], I said, bring them all.” When the trial court

asked Appellant’s counsel whether he was disputing that the material seized in

the Ohio patrol car was contraband, counsel stated, “Yeah . . . we’re disputing

14
everything. . . [W]e tried to make an agreement beforehand, and when it was

clear there was never going to be anything that would — I would consider a

reasonable offer for any court in this courthouse, I said, bring [on the witnesses].”

The trial court then proceeded with the hearing, noting that the State could

produce the chemist at a later time. Throughout the hearing, Appellant’s counsel

appeared to vigorously challenge the State’s evidence and defend Appellant’s

interests. After the State presented several witnesses, the trial court granted the

State’s motion for continuance. A month later, the hearing resumed, and

Appellant’s counsel (with Appellant’s express agreement) stipulated to the

Hamilton County, Ohio, lab report, which provided that the “brown solid material”

contained in a plastic bag and submitted for testing in the instant case was heroin

and weighed 13.98 grams. The State subsequently rested its case, and

Appellant’s counsel stated he would present mitigation testimony.9 Appellant’s

mother, girlfriend, and cousin testified. In closing argument, Appellant’s counsel

argued to the trial court (with the challenged portion of the argument italicized)

that,

It was [Appellant’s] intention all along to — to plead true to — to the
possession. And once this — once this hearing got started — I

9
With the agreement of the parties, the trial court heard both adjudication
and mitigation evidence before ruling and assessing punishment in a single
proclamation. See Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App.
1999) (holding that defendant does not have absolute right to separate
punishment hearing but must have opportunity to present mitigating evidence if
that right was not afforded during adjudication). Thus, Appellant’s counsel was
addressing both adjudication and punishment in his closing argument.

15
 wasn’t sure that he made — we had a tape with maybe his voice on
it with no one setting any kind [of] foundation for it of the — the
person who made the call and — and started this — and I say,
“entrapment.” I don’t mean the legal reason but — the legal version
— but to talk to him in — into this deal — and is it him and I never
[c]ould hear the word “heroin.” I never hear dollar amounts and they
said, oh, he’s using code, but I didn’t think that code’s explained
sufficiently, and I couldn’t understand what they were saying,
anyway.

But at — at [Appellant’s] request, he said — he said,
[counsel], it was me, of course, it was me. And that — that’s what I
was doing. He doesn’t want me to — to — to take that route where
I’m contesting this whole thing.

****

[Defense Counsel]: So since [Appellant is] — at his request,
he’s — he’s admitting [to] his possession of it, I’d like to draw your
attention to —

THE COURT: Okay, now, let me —let me just stop you there.
Are you saying he wishes to change his plea to true?

[Defense Counsel]: No. This is — this is just my argument.

THE COURT: Well, if you want to have — if you want to
articulate that he wants to — he’s pleading true or he’s admitting
that, that’s one thing. But if you’re — if he isn’t willing to do that, I
don’t think you can argue that, can you?

[Defense Counsel]: I don’t know.

THE COURT: Okay. I’ll take whatever you say under
advisement.

[Defense Counsel]: I think it’s —okay. I think it is true and I
think it will be true.

[Emphasis added.] Immediately thereafter, Appellant personally addressed the

trial court (with its permission):

16
 [W]hen I did get arrested for this charge in Ohio, you know, my
whole thing was, you know, I need some help.

....

[I] know I hurt my family and hurt myself, you know. I mean, I don’t
have any intentions on, you know, playing any games.

I come at the mercy of the Court and I’m just petitioning for
leniency. I really was trying to get some drug rehabilitation. I never
had drug rehab, you know. I’ve been using drugs since high school,
you know. I kicked the marijuana but I’m going to need some help
with the heroin because it’s not, you know, it’s not as easy as I
thought, you know.

Relying on Long v. State and Hutchinson v. State, Appellant asserts that a

“stipulation or argument which destroys appellant’s only defense cannot be

classified as ‘trial strategy.’” See Long, 764 S.W.2d 30, 31 (Tex. App.—San

Antonio 1989, pet. ref’d); Hutchinson, 663 S.W.2d 610, 613–15 (Tex. App.—

Houston [1st Dist.] 1983, pet. ref’d). In Long, trial counsel presented an insanity

defense but then stipulated to a police report that showed that Long had become

voluntarily intoxicated, thereby annulling his defense strategy. 764 S.W.2d at 31.

The trial court then “expressly based its rejection of appellant’s defense on the

damaging stipulated statement regarding voluntary intoxication.” Id. The

Hutchinson case involved a jury trial in which defense counsel presented no

evidence in support of the appellant’s guilt and then effectively “confessed the

guilt of his client” by stating in closing argument, “That’s the way the system

works. The prosecutor brings you the evidence against him. I bring you

whatever evidence I have in his favor.” 663 S.W.2d at 613 (finding ineffective

17
assistance of counsel because it was “obvious from the record that appellant’s

counsel never intended to present any defense to the drug charge and that the

plea of not guilty was never seriously urged”).

Unlike in Long and Hutchinson, the record in the instant case does not

support Appellant’s ineffective assistance claim. In personally addressing the

trial court, Appellant made admissions similar to the one he now criticizes his

counsel for making. Notably, both counsel’s and Appellant’s admissions appear

to be strategic. The record indicates that Appellant and his counsel grappled

with how best to approach the adjudication hearing and that during the month-

long break they determined that the best strategy was to request leniency in the

face of considerable evidence that Appellant violated several of the conditions

and terms of his community supervision, including that he committed drug-related

offenses in Ohio for which he was arrested and charged by indictment. See

Wiley v. State, No. 13-11-00130-CR, 2012 WL 112805, at *2–4 (Tex. App.—

Corpus Christi Jan. 12, 2012, no pet.) (mem. op., not designated for publication)

(construing counsel’s argument that Wiley had “not committed the crime of the

century” as a request for lenience in the face of what appeared to be

overwhelming evidence of her violations).

Moreover, the record indicates that counsel did not abandon his role as an

advocate. Indeed, he argued that the State had not proven the seventh

allegation—that Appellant knowingly possessed a firearm—or the eighth

allegation—that Appellant failed to complete his minimum monthly number of

18
hours of community service. The trial court found the eighth allegation to be “not

true,” and also found “not true” the sixth allegation—that Appellant failed to avoid

injurious or vicious habits on or about January 12, 2010. Counsel also made

several arguments regarding why the trial court should sentence Appellant in the

lower half of the punishment range. Without additional explanation, we cannot

conclude trial counsel pursued an unsound trial strategy. See Thompson, 9

S.W.3d at 813–14. Thus, Appellant fails to rebut the presumption that counsel

made all significant decisions in the exercise of reasonable professional

judgment; therefore, he fails to show that trial counsel’s performance fell below

an objective standard of reasonableness. See Strickland, 466 U.S. at 687–88,

104 S. Ct. at 2064.

Additionally, the record does not show that the outcome would have been

different had counsel not made the challenged argument. Despite counsel’s

admission, the State proved by a preponderance of the evidence (separate and

apart from any admissions by Appellant’s counsel) that Appellant violated several

of the terms and conditions of his community supervision. Further, in revoking

Appellant’s community supervision and imposing a twenty-year sentence, the

trial court emphasized its concern about Appellant’s drug dealing, of which there

was an abundance of evidence. Based on the record before us, we cannot say

that the outcome of the proceeding would have been different if counsel had not

admitted to Appellant’s heroin possession. We overrule Appellant’s second

issue.

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 V. Conclusion

Having overruled Appellant’s two issues, we affirm the trial court’s

judgment.

ANNE GARDNER
JUSTICE

PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 3, 2012

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