NUMBER 13-16-00281-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DAVID TRIPLETT, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 214th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Longoria
Memorandum Opinion by Justice Rodriguez
By two issues, appellant David Triplett challenges the revocation of his community
supervision. Triplett asserts that he received ineffective assistance of counsel. We
affirm as modified.
I. BACKGROUND
On October 5, 2012, Triplett pleaded guilty to the offense of theft of copper valued
at less than $20,000, a state-jail felony. See TEX. PENAL CODE ANN. § 31.03(e)(4)(F)(iii)
(West, Westlaw through 2017 1st C.S.). The trial court placed Triplett on deferred
adjudication for four years.
In the intervening years, the State filed three motions to revoke Triplett’s
community supervision. The first two motions were filed in 2012 and 2014, and they
resulted in jail sanctions of sixty days and fifteen days, respectively. This appeal
concerns the State’s third and final motion to revoke Triplett’s community supervision.
In its motion, the State alleged that Triplett violated the terms of his community
supervision by not paying various costs and fees and by not completing a required mental
health program. Triplett was also alleged to have robbed a woman in a Wal-Mart parking
lot. The revocation hearing was set for March 31, 2016.
On March 30, 2016, Triplett obtained subpoenas for “Richard Wood” and “Scott
Wood”—both of whom were alleged to be custodians of records for the Wal-Mart—asking
them to produce a video recording of the events that unfolded in the parking lot. On the
same day, the trial court granted Triplett a continuance to collect and review Wal-Mart’s
video. On April 4, 2016, Triplett obtained another, similar subpoena for “Lupita Alvarez,”
who was also described as a custodian of records for Wal-Mart. Ultimately, no video
was presented at the revocation proceeding.
The robbery offense became the primary subject of the proceeding, which was
conducted on April 5, 2016. Triplett entered a plea of “not true” to the State’s allegations,
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and the State began its case. The State first called Veronica Guerra, who testified that
she agreed to meet Triplett in the Wal-Mart parking lot. According to Guerra, Triplett
helped her put Freon into her Jeep’s air-conditioning unit and then entered her vehicle.
Roughly twenty minutes later, he grew angry with her. Guerra testified that Triplett
began choking her with one hand, and she lost consciousness. Guerra testified that
when she came to, she was stumbling through the parking lot, with cuts and bruises, as
Triplett drove away with her purse.
Officer Stephen Brown testified that he found Guerra at the Wal-Mart, shaking and
crying. According to Officer Brown, Guerra reported that Triplett choked her to the point
that she blacked out, and he observed corresponding scratches and red marks on
Guerra’s neck and a cut behind her ear. Officer Brown took photographs of her injuries,
which were introduced into evidence. He also corroborated Guerra’s testimony that
Triplett had taken her purse and her keys. Finally, Officer Brown related that Triplett had
contacted police and been detained within roughly “an hour, hour and a half,” and that he
was no longer in possession of Guerra’s purse.
Following Officer Brown’s testimony, the parties rested, and the trial court found
the State’s allegations true. The court revoked Triplett’s community supervision,
adjudicated his theft-of-copper offense, and sentenced him to eighteen months in state
jail. The judgment reflected that Triplett pleaded “true” to the State’s allegations.
After adjudication, Triplett’s appointed attorney filed a notice of appeal and,
subsequently, a motion for new trial on the ground of newly obtained evidence: a
security video of the Wal-Mart parking lot. However, Triplett and his trial counsel did not
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request a hearing on the motion. Also, Triplett and trial counsel did not attach the video
to the motion or make further effort to bring that evidence before the trial court’s
consideration. The video does not appear in the appellate record.
II. DISCUSSION
By his first issue, Triplett argues that his trial counsel was ineffective in managing
the motion for new trial. He argues that trial counsel’s handling of the motion was
deficient in at least two ways: (1) he did not attach sworn evidence to the motion; and
(2) he did not formally present the motion for the trial court’s consideration, such as by
requesting a hearing on the motion. See, e.g., Rozell v. State, 176 S.W.3d 228, 230
(Tex. Crim. App. 2005) (“[A] reviewing court does not reach the question of whether a trial
court abused its discretion in failing to hold a hearing if no request for a hearing was
presented to it.”). Triplett argues that the failure to present the motion and the evidence
amounts to constitutionally inadequate counsel.
A. Standard of Review and Applicable Law
1. Ineffective Assistance
Under Strickland v. Washington’s two-prong test, Triplett has the burden of
showing by a preponderance of the evidence that counsel’s conduct was deficient—that
is, that counsel’s representation fell below an objective standard of reasonableness and
was not the result of reasonable professional judgment—and that, but for his deficient
conduct, there is a reasonable probability that the result of the proceeding would have
been different. See Ex parte Saenz, 491 S.W.3d 819, 826 (Tex. Crim. App. 2016) (citing
Strickland v. Washington, 466 U.S. 668, 688–94 (1984)). There is a strong presumption
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that counsel’s conduct was reasonable, and judicial scrutiny of counsel’s conduct is highly
deferential. Id. As to the second prong, a reasonable probability is a probability
sufficient to undermine confidence in the outcome. Id. “The question is not whether the
defendant would more likely than not have received a different verdict with the evidence,
but whether in its absence he received a fair trial, understood as a trial resulting in a
verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995).
Any 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). A record on direct appeal will rarely be
sufficient to satisfy this burden, Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App.
2003) (en banc), especially where a defendant’s complaint concerns “errors of omission
de hors the record . . . .” Thompson, 9 S.W.3d at 814.
2. Newly Discovered Evidence
“A new trial shall be granted an accused where material evidence favorable to the
accused has been discovered since trial.” TEX. CRIM. PROC. CODE ANN. § 40.001 (West,
Westlaw through 2017 1st C.S.). To obtain relief under this provision, the defendant
must satisfy a four-prong test:
(1) the newly discovered evidence was unknown or unavailable to the
defendant at the time of trial;
(2) the defendant’s failure to discover or obtain the new evidence was
not due to the defendant’s lack of due diligence;
(3) the new evidence is admissible and not merely cumulative,
corroborative, collateral, or impeaching; and
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(4) the new evidence is probably true and will probably bring about a
different result in a new trial.
State v. Arizmendi, 519 S.W.3d 143, 149 (Tex. Crim. App. 2017).
B. Analysis
Triplett alleges that trial counsel was deficient with respect to the motion for new
trial—in particular, by failing to submit evidence along with the motion. However, the
very nature of the mistake he complains of—an “error[] of omission” in failing to submit a
video, which has not been developed at a habeas proceeding—leaves the record in an
undeveloped state that prevents us from sustaining his claim. See Thompson, 9 S.W.3d
at 814. Without any indication of what the video contains, Triplett offers no evidentiary
basis to believe that, but for trial counsel’s allegedly deficient conduct, there is a
reasonable probability that the result of the proceeding would have been different. See
Saenz, 491 S.W.3d at 826; Ex parte Ramirez, 280 S.W.3d 848, 853–54 (Tex. Crim. App.
2007) (per curiam) (rejecting an ineffective assistance claim on prejudice grounds
because there was no evidence that the omitted surveillance video was exculpatory: “In
fact, we have no idea what the video recorded. As a result, . . . Ramirez has not
demonstrated that he was prejudiced by counsel’s failure to review the tape or offer it into
evidence.”); see also Gallegos v. State, No. 07-17-00137-CR, 2017 WL 6459540, at *2
(Tex. App.—Amarillo Dec. 18, 2017, pet. ref’d) (mem. op. per curiam, not designated for
publication) (similar rejection of an ineffective assistance claim; “appellant asks us to
speculate on 1) whether such a video existed, 2) the content captured by the video, and
3) on whether that content, if any, was favorable to her”); Tucker v. State, No. 02-15-
00363-CR, 2016 WL 7405802, at *4 (Tex. App.—Fort Worth Dec. 22, 2016, pet. ref’d)
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(mem. op., not designated for publication) (rejecting an ineffective assistance claim
concerning a failure to present security-camera evidence of an incident in a Wal-Mart
parking lot, because “[t]here is no record here of why counsel delayed in obtaining the
photos, whether the photos were available, or what benefit the photos would have had”);
Gower v. State, No. 02-10-00362-CR, 2011 WL 4916438, at *5 (Tex. App.—Fort Worth
Oct. 13, 2011, no pet.) (mem. op., not designated for publication) (“Even if we were to
conclude that Moore’s performance in these areas was ineffective, appellant could not
satisfy the second Strickland prong because he provides no evidence showing a
reasonable probability that the trial’s outcome would have been different . . . : appellant
did not present surveillance tapes that Moore had overlooked . . . .”). Triplett’s complaint
that trial counsel failed to formally present his motion does not alter the validity of our
conclusion: in the absence of record evidence to support Triplett’s assertions concerning
the video, our confidence in the fairness and the outcome of the proceeding is unshaken.
See Kyles, 514 U.S. at 434; Thompson, 9 S.W.3d at 813.
Thus, even assuming a deficiency under the first prong of Strickland—a matter we
do not decide—Triplett is unable to show prejudice under the second prong. See Saenz,
491 S.W.3d at 826.1 Because Triplett’s ineffective assistance claim is not firmly founded
in the record on direct appeal, we are unable to grant the relief he seeks. See
Thompson, 9 S.W.3d at 813. Triplett’s recourse, if any, is through habeas. See id.
We overrule Triplett’s first issue.
1 “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . .
that course should be followed.” Strickland v. Washington, 466 U.S. 668, 697 (1984).
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This one ground will support the trial court’s order revoking community supervision.
See Smith v. State, 286 S.W.3d 333, 342 & n.36 (Tex. Crim. App. 2009); Gobell v. State,
528 S.W.2d 223, 224 (Tex. Crim. App. 1975); see also Holcombe v. State, No. 13-12-
00750-CR, 2013 WL 2949559, at *2 (Tex. App.—Corpus Christi June 13, 2013, pet. ref’d)
(mem. op., not designated for publication). Because the robbery finding supports the
revocation, we need not consider Triplett’s remaining issue challenging the State’s
alternative grounds for revocation. See State v. Plambeck, 182 S.W.3d 365, 367 n.10
(Tex. Crim. App. 2005) (en banc) (“A court is not required to address issues that become
moot because of the resolution of other issues . . . .”); see also TEX. R. APP. P. 47.1.
However, the judgment states that Triplett entered a plea of “true” to the State’s
allegations. In fact, Triplett pleaded “not true.” The judgment is therefore inaccurate
and should be reformed. See Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993)
(en banc) (approving the correction of “mistakes of a clerical nature” in judgments, along
with more substantial errors).
III. CONCLUSION
We modify the judgment to reflect that Triplett pleaded not true to the State’s
allegations. We affirm the judgment of the trial court as modified.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
5th day of April, 2018.
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