Kurtis Evan King v. The State of Texas--Appeal from Criminal District Court No. 1 of Tarrant County

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Download PDF 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 yearsâ confinement in each case and asserts in two 1 â ¦ 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 yearsâ 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 Appellantâ s community supervision officer felt that Appellant should be given another chance. Appellantâ s community supervision officer recommended that Appellant be placed into a long-term treatment center to combat his substance abuse problems. The trial courtâ 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 centerâ 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 yearsâ community supervision. The terms of Appellantâ 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 centerâ 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 Appellantâ 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 yearsâ 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 counselâ s representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counselâ 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, 62â 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 counselâ 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 counselâ 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 Appellantâ s counsel did not solicit testimony from an expert witness concerning the effect, if any, of Appellantâ s medication on his behavior, Appellantâ 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 â anxiety riddenâ when not taking his medication.2 Moreover, at the motion for new trial hearing, the trial court received the letter from Appellantâ s doctor opining that Appellantâ s failure to complete the treatment program â was directly related to his being taken off the medication that had been stabilizing his mood,â but the trial court denied Appellantâ s motion for new trial. Thus, Appellant has not shown that there is a reasonable probability that, but for counselâ s alleged 2 â ¦ 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.â 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 Appellantâ s issues. V. Conclusion Having overruled each of Appellantâ s two issues, we affirm the trial courtâ 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