Sharon Alexander v. The State of Texas--Appeal from Criminal District Court No. 5 of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

SHARON ALEXANDER, )

) No. 08-05-00256-CR

Appellant, )

) Appeal from the

v. )

) Criminal District Court #5

THE STATE OF TEXAS, )

) of Dallas County, Texas

Appellee. )

) (TC# F03-71121-WL)

)

O P I N I O N

Sharon Alexander appeals from an adjudication of guilt for the offense of unlawful delivery of cocaine in an amount less than one gram. She brings a single issue: that she received ineffective assistance of counsel.

Appellant was indicted for the offense of delivery of a controlled substance in an amount less than one gram. Appellant waived her right to a trial by jury and pled guilty to the offense. Pursuant to a plea bargain, the trial court deferred a finding of guilt and placed Appellant on community supervision for a term of five years and assessed a fine of $1,500. In March of 2005, the State filed a motion to adjudicate alleging Appellant had violated certain terms of her community supervision by: (1) testing positive for cocaine use; (2) failing to report to the Comprehensive Assessment and Treatment Services ( C.A.T.S. ) program; and (3) failing to report to the Dallas County Sheriff s Office for fingerprinting.

At a hearing on the State s motion to adjudicate, Appellant entered a plea of true. The State admitted Appellant s signed, written, voluntary plea of true and asked the court to take judicial notice of the contents of the trial court s file. The trial court found the allegations contained in the State s motion to be true and proceeded to an adjudication of guilt. Appellant was sentenced to two years in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a motion for new trial which stated that a new trial should be granted because the verdict is contrary to the law and the evidence. The court denied Appellant s motion for new trial and she filed her notice of appeal.

Standard of ReviewWe review claims of ineffective assistance of counsel under the two-prong test set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail on an ineffective assistance claim, the appellant must first show that counsel s performance was deficient, that is, counsel s representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999).

In addition, the appellant must show that counsel s deficient performance prejudiced her defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). This requires the appellant to show there is a reasonable probability that but for counsel s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771.

In reviewing claims of ineffective assistance, we indulge a strong presumption that counsel s conduct falls within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813. To prevail, the appellant must rebut the presumption that the challenged conduct might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Without evidence of the strategy involved concerning counsel s actions at trial, the reviewing court will presume sound trial strategy. See Thompson, 9 S.W.3d at 814; Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003).

Ultimately, Appellant bears the burden of proving ineffective assistance by a preponderance of the evidence. Thompson, 9 S.W.3d at 813; Bradley v. State, 960 S.W.2d 791, 804 (Tex.App.--El Paso 1997, pet. ref d). Any allegation of ineffectiveness must be firmly founded and affirmatively demonstrated in the record. Thompson, 9 S.W.3d at 813. In the majority of instances, an appellant cannot rebut the presumption of reasonable assistance because the record on direct appeal is simply undeveloped and does not adequately reflect the failings of trial counsel. Id. at 813-14.

A silent record that provides no explanation for counsel s actions will not ordinarily overcome the strong presumption of reasonable assistance. See Rylander, 101 S.W.3d at 110-11. Indeed, it would be rare for an appellate court to declare trial counsel ineffective without a record showing counsel had some opportunity to explain himself unless the challenged conduct was so outrageous that no competent attorney would have engaged in it. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005), citing Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001), cert. denied, 537 U.S. 1195, 123 S. Ct. 1351, 154 L. Ed. 2d 1030 (2003).

Appellant argues she was denied effective assistance of counsel as a result of her trial attorney s failure to: (1) object when the trial court did not conduct a separate punishment hearing; and (2) present any evidence or testimony in mitigation of punishment. Initially, we note that although Appellant filed a motion for new trial, she did not challenge the ineffectiveness of her counsel. Thus, her burden of proving ineffective assistance is even more difficult. See Thompson, 9 S.W.3d at 813-14.

Regardless, we disagree with Appellant s position that a defendant is always entitled to a separate punishment hearing after an adjudication of guilt. We agree that the trial court must allow the defendant an opportunity to present evidence in mitigation of punishment. See Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App. 1992). However, all that is required is that a defendant be given an opportunity at some stage of the proceedings to present evidence, not that she be afforded a separate hearing in which to do so. See Pearson v. State, 994 S.W.2d 176, 179 (Tex.Crim.App. 1999); see also Hardeman v. State, 1 S.W.3d 689, 690-91 (Tex.Crim.App. 1999)(holding that Issa requires only that the defendant have the opportunity to present evidence in mitigation of punishment if not afforded same during adjudication).

In this case, Appellant was clearly given, and took full advantage of, an opportunity to present evidence in mitigation of punishment during the adjudication stage of the proceedings. At the hearing, Appellant s trial counsel addressed some of the allegations contained in the State s motion to adjudicate. Appellant attempted to explain why she failed to abide by the conditions of her community supervision. Appellant was first questioned about her failure to report to the Dallas County Sheriff s Office for fingerprinting. Trial counsel noted that the State had withdrawn that allegation because Appellant had been fingerprinted at some point prior to the hearing. Trial counsel then asked Appellant about her failure to report to the C.A.T.S. program. Appellant responded that her close friend had been in the intensive care unit at the hospital. Counsel also asked Appellant if she was employed. Appellant replied that she was currently working and had always held a job.

At the conclusion of counsel s questioning of Appellant, he asked her if there was [a]nything else that you want to tell the Judge right now at this point. Appellant replied that I am a working, responsible person and I do plan to continue with my probation. The trial court then asked about her positive urinalysis. Appellant spoke at length about why she tested positive for cocaine use. Appellant first stated that she did not know why she tested positive. She surmised that it was because she had been in the presence of individuals who had been smoking crack cocaine although she claimed that she did not directly ingest any. Appellant then reiterated to the court that she did not know how the cocaine got into her system. She stated that she was at a friend s house and went into a room where other individuals were smoking crack cocaine in order to tell her friend that she was leaving because she did not want to be around it.

The court asked Appellant if she had taken a hit before she left her friend s home. Appellant replied that she could not remember if she had or not. The court then sought to determine the level of her urinalysis. Appellant stated that she had taken a whole lot of other medications, such as antibiotics and sinus medications. The court noted the results of Appellant s urinalysis as 1,000 milligrams per milliliter when a positive result required only 300 milligrams per milliliter. The court reminded Appellant that two tests were performed but offered Appellant an opportunity to have another urinalysis performed. Appellant declined the court s offer.

Appellant maintained that she did not understand how she had tested positive. The trial judge told Appellant that if she really did not smoke any crack cocaine, he would have the tests performed again. Eventually, Appellant remembered she had ingested the substance from a rolled cigarette, which she claimed she threw away after realizing it contained cocaine.

After reviewing the record, we conclude that Appellant was clearly afforded an opportunity to present evidence in mitigation of punishment during the proceedings. Thus, there were no grounds for trial counsel to object. See Hardeman, 1 S.W.3d at 691. Consequently, we disagree that the performance of Appellant s trial counsel was deficient for failing to object to the lack of a separate punishment hearing.

Additionally, Appellant claims that her trial counsel s performance was deficient for failing to present any evidence or testimony in mitigation of punishment. Appellant argues the record reflects that favorable testimony was available but never offered. Specifically, she argues that the statement she made during her testimony that she always had a job is sufficient to show that favorable testimony was available from her employer and co-workers. According to Appellant, this testimony could have been offered to establish that she was a responsible person and could successfully complete community supervision. We again disagree.

Other than Appellant s bare assertion, there is nothing in the record, including in her motion for new trial, indicating that her employer or co-workers were even available to testify or would have presented favorable testimony. Appellant also argues that her trial counsel failed to call any family members or friends to establish that she was a good candidate for a probated sentence or that punishment should be assessed in the lower range. However, when the record is silent, we will not speculate as to the motivations or reasons for trial counsel s actions. See Jackson, 877 S.W.2d at 771.

We conclude Appellant has not met her burden of showing her trial counsel was ineffective. We, therefore, find that Appellant has failed to show trial counsel s performance fell below an objective standard of reasonableness. We need not address both components of the inquiry if the defendant makes an insufficient showing on one component of the Strickland analysis. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069; Mallett v. State, 65 S.W.3d 59, 68 (Tex.Crim.App. 2001). Accordingly, Issue One is overruled.

Having overruled Appellant s sole issue, we affirm the trial court s judgment.

November 22, 2006

DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, J., and Barajas, C.J. (Ret.)

Barajas, C.J. (Ret.), Sitting by Assignment, not participating

(Do Not Publish)