COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-09-328-CR
2-09-329-CR
KURTIS EVAN KING APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
I. Introduction
Appellant Kurtis Evan King received deferred adjudication community
supervision after pleading guilty in separate cases to theft of a firearm and
criminal mischief. He appeals from the judgments adjudicating his guilt and
sentencing him to two years’ confinement in each case and asserts in two
1
… See Tex. R. App. P. 47.4.
issues that his counsel provided ineffective assistance at the revocation
hearing. We affirm.
II. Background
Appellant pleaded guilty to theft of a firearm on August 1, 2008, and the
trial court deferred adjudication and placed him on four years’ community
supervision. On September 22, 2008, Appellant was diagnosed as bipolar and
placed on bipolar medication. On September 26, 2008, the State filed a
petition to proceed to adjudication and filed an amended petition to proceed to
adjudication on November 26, 2008. The amended petition alleged that
Appellant had violated the terms of his community supervision by (1)
committing the offense of driving under the influence of alcohol on September
16, 2008, (2) committing the offense of public intoxication on September 19,
2008, (3) consuming alcohol on September 11, 19, and 23, 2008, (4) failing
to report to his community supervision officer in October 2008, and (5) failing
to pay a supervision fee and restitution in October 2008. However, the State
dismissed the amended petition to proceed to adjudication on December 15,
2008, because Appellant’s community supervision officer felt that Appellant
should be given another chance. Appellant’s community supervision officer
recommended that Appellant be placed into a long-term treatment center to
combat his substance abuse problems. The trial court’s order sending Appellant
2
to a treatment center and modifying the conditions of his community
supervision required that he obey all of the treatment center’s rules and
regulations.
Appellant pleaded guilty to criminal mischief on January 30, 2009, and
the trial court deferred adjudication and placed him on three years’ community
supervision. The terms of Appellant’s community supervision required that he
successfully complete substance abuse treatment.
On February 2, 2009, Appellant entered into a residential treatment
program at Lubbock County Community Corrections Facility. A community
supervision officer from the treatment center testified that Appellant violated
the treatment center’s rules on February 8, 2009, by failing to take his
medication; on March 19, 2009, by loaning a compact disc to another resident;
on May 28, 2009, by making inappropriate comments during class; on June 9,
2009, by being involved in a physical altercation with another resident; and on
June 16, 2009, by picking on another resident and making fun of him. The
treatment center unsuccessfully discharged Appellant from the program after
the June 16, 2009 rules violation. After the first two rules violations but before
the last three rules violations, Appellant was taken off of his bipolar medication
by a doctor following an incident in which he fainted and hit his head.
3
The State filed a petition to proceed to adjudication in both cases on June
18, 2009, alleging that Appellant had violated the terms of his community
supervision by being unsuccessfully discharged from the treatment center. In
addition to the above evidence, the trial court heard testimony by one
community supervision officer that documentation from counselors and
teachers at the facility suggested that Appellant’s detrimental behavior was not
directly related to his medication use and another community supervision officer
that he did not believe Appellant could successfully complete community
supervision. After conducting the evidentiary hearing, the trial court found that
Appellant had violated the terms of his community supervision in each case,
adjudicated him guilty of each offense, and sentenced him in each case to two
years’ confinement in state jail, with the sentences to run concurrently. This
appeal followed.
III. Applicable Law
To establish ineffective assistance of counsel, the 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. See 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.
4
2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v.
State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The second prong of
Strickland requires a showing that counsel’s errors were so serious that they
deprived the defendant of a fair trial, i.e., a trial with a reliable result.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, the appellant
must show there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
See 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.
IV. Discussion
Appellant argues that his trial counsel rendered ineffective assistance by
failing to call an expert witness at the revocation hearing to testify that his rule
violations were most likely due to his being taken off of his bipolar medication
and by failing to offer his medical records in a manner that would ensure their
admissibility. He contends that he received the maximum sentence in each
case but that his sentences would have been shorter had counsel rendered
effective assistance. However, Appellant has not shown that a reasonable
5
probability exists that his punishment would have been different had trial
counsel done as he contends she should have. See Strickland, 466 U.S. at
694, 104 S. Ct. at 2068.
The record reflects that Appellant told the trial court that he could not
blame all of his violations on not taking his medication, that Appellant
committed two rules violations while taking his medication, and that Appellant
used drugs and alcohol while on community supervision both before and after
taking bipolar medication. And although Appellant’s counsel did not solicit
testimony from an expert witness concerning the effect, if any, of Appellant’s
medication on his behavior, Appellant’s counsel did present evidence through
Appellant, his mother, and his grandfather that Appellant is happy, more stable,
and family oriented when taking his medication and irritable, edgy, and “anxiety
ridden” when not taking his medication.2 Moreover, at the motion for new trial
hearing, the trial court received the letter from Appellant’s doctor opining that
Appellant’s failure to complete the treatment program “was directly related to
his being taken off the medication that had been stabilizing his mood,” but the
trial court denied Appellant’s motion for new trial. Thus, Appellant has not
shown that there is a reasonable probability that, but for counsel’s alleged
2
… Appellant does not explain how the admission of his medical records
might have led the trial court to assess a lesser sentence.
6
unprofessional errors, the result of the proceeding would have been different.
See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; see also Burrus v. State,
266 S.W.3d 107, 114 (Tex. App.—Fort Worth 2008, no pet.) (overruling claim
of ineffective assistance for failure to demonstrate reasonable probability of
different punishment had counsel acted differently). We overrule each of
Appellant’s issues.
V. Conclusion
Having overruled each of Appellant’s two issues, we affirm the trial
court’s judgments.
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 31, 2010
7