                         NO. 07-11-00172-CR; 07-11-00173-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL A

                                   JANUARY 11, 2012


                        JAMES CARROLL MEEKS, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


            FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

           NO. 18,219-B, 20,538-B; HONORABLE JOHN B. BOARD, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


       Appellant, James Carroll Meeks, appeals the trial court’s judgments of conviction

for assault and the resulting ten and five-year sentences, respectively and running

consecutively. On appeal from his adjudication of guilt for said offenses, he contends

that trial counsel rendered ineffective assistance of counsel. We will affirm.


                             Factual and Procedural History


       Appellant was placed on deferred adjudication community supervision in 2007

following an agreement with the State by which he would plead guilty to allegations of
felony assault1 of his wife in exchange for deferred adjudication community supervision

for two years. In 2009, appellant was indicted for a second felony assault of his wife.

As a consequence of this second assault, the State moved the trial court to proceed to

adjudication of guilt with respect to the first charge of assault. Following a hearing on

the State’s motion and the subsequent assault allegations, the trial court deferred

adjudication on the second charge of assault as well and extended appellant’s deferred

adjudication community supervision to a period of four years, with the added condition

that appellant enter the SAFPF program.


      In 2010, appellant was arrested for DWI. Based on this DWI offense and other

allegations of failing to abide by the terms of his deferred adjudication community

supervision, the State moved the trial court to adjudicate appellant guilty of the two

felony assault offenses.   Following a hearing on that motion, the trial court found

appellant guilty of said offenses, sentenced appellant to a ten-year sentence with

respect to the 2007 assault and a five-year sentence with respect to the 2009 assault,

and ordered that the sentences be served consecutively. Appellant timely perfected

appeal to this Court and now contends that retained defense counsel rendered

ineffective assistance by failing to properly communicate with appellant before and

during the hearing on the State’s motion to proceed to adjudication.


                        Applicable Law and Standard of Review


      The United States Constitution’s guarantee of the right to counsel encompasses

the right to effective assistance of counsel. U.S. CONST. amend. VI; Strickland v.

      1
          See TEX. PENAL CODE ANN. § 22.01 (West 2011).
                                            2
Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In determining

whether counsel’s representation was so inadequate as to violate a defendant’s Sixth

Amendment right to counsel, Texas courts apply the two-pronged test enunciated in

Strickland, 466 U.S. at 687.         See Hernandez v. State, 726 S.W.2d 53, 55

(Tex.Crim.App. 1986). Judicial review of an ineffective assistance of counsel claim

must be highly deferential, and there is a strong presumption that trial counsel’s conduct

fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at

689.   An appellant claiming ineffective assistance of counsel bears the burden of

proving by a preponderance of the evidence that (1) counsel’s representation fell below

an objective standard of reasonableness and (2) the deficient performance prejudiced

the appellant. Freeman v. State, 125 S.W.3d 505, 511 (Tex.Crim.App. 2003). Failure

to make the required showing of either deficient performance or sufficient prejudice is

fatal to an ineffectiveness claim. See id.


       The ―right to effective assistance of counsel merely ensures the right to

reasonably effective [not perfect] assistance.‖ Robertson v. State, 187 S.W.3d 475, 483

(Tex.Crim.App. 2006) (quoting Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App.

1984)). This right does not mean errorless or perfect counsel whose competency of

representation is to be judged by hindsight. See Ingham, 679 S.W.2d at 509. ―Isolated

instances in the record reflecting errors of omission or commission do not render

counsel’s performance ineffective, nor can ineffective assistance of counsel be

established by isolating one portion of trial counsel’s performance for examination.‖

Robertson, 187 S.W.3d at 483 (quoting McFarland v. State, 845 S.W.2d 824, 843

(Tex.Crim.App. 1992)). Counsel’s performance is judged by ―the totality of the
                                             3
representation,‖ and ―judicial scrutiny of counsel’s performance must be highly

deferential‖ with every effort made to eliminate the distorting effects of hindsight. Id.

The Strickland Court cautioned us to avoid an intrusive post-trial inquiry into attorney

performance because such an inquiry would encourage the proliferation of

ineffectiveness challenges. Id. (citing Strickland, 466 U.S. at 690).


                                         Analysis


       Appellant contends that trial counsel was ineffective in his failure to fully

communicate the timing and nature of the proceedings against him. Appellant contends

that his pleas of true to the allegations contained in the State’s motion were made as a

result of his confusion and trial counsel’s failure to more effectively communicate the

potential consequences of such a plea. Appellant also maintains that, had trial counsel

more effectively communicated with him, appellant would have been able to present

more evidence regarding the positive changes in his life resulting from a change in his

medication and his attendance at AA meetings. Citing Milburn v. State, 15 S.W.3d 267

(Tex.App.—Houston [14th Dist.] pet. ref’d), appellant contends that he was prejudiced

by trial counsel’s failure to interview potential witnesses and present this mitigating

evidence. Appellant takes the position that, had the trial court been able to consider this

other evidence, ―in all likelihood,‖ it would not have sentenced him to incarceration or

would have, at least, imposed a lesser sentence.


       At the hearing on the State’s motion, trial counsel offered the following in

response to the trial court’s inquiry if appellant was ready to proceed:



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       No, sir. At this time it’s my understanding is that due to confusion
       between the communication between the defense attorney and the
       Defendant, there’s been a misunderstanding here about what was going
       on today, and it’s largely due to my fault, because there’s a certain amount
       of problem in communicating because he works out in the field in
       construction and doesn’t have a cell phone with him all the time. And then
       – anyway, he didn’t realize that he could very well be going away today
       and he doesn’t have his affairs in order to leave, and he wanted a
       continuance for this – this hearing to get some personal things lined out.
       And we would request the Court to take that into consideration, because
       he is not prepared for this. I – and it’s my fault for not properly being in
       tighter communication.

In closing argument, trial counsel again noted the possibility that he had not effectively

communicated the details of the proceeding to appellant, pointed out the deteriorating

attorney-client relationship, and sought leniency:


       Your Honor, you’ve heard the evidence and I’m not going to regurgitate it
       much, but there is an ongoing family situation here that’s going to be
       drastically affected, and I hope you take that into consideration. I want to
       call to the Court’s attention that there may very well be a problem here at
       issue due to my lack of proper communication with the Defendant early
       strong enough. He apparently thought we were just discussing part of his
       problems today, and I – and I’ve tried to – I thought I told him we were
       going to handle everything, but this thing has gotten out of hand. And I
       know that you’re not privy to my conversations and – but it is – it got
       almost near acrimonious at times and that is not a fault of my client. That
       may be part of my fault due to the fact that I assume people may know
       what I’m talking about. And rather than specifically going into minutia in
       detail to make damn sure and be very clear and that – that is a fault of
       mine. I mean, in me speaking and someone not understanding it. But I
       thought we had a more satisfactory relationship and it’s – it’s – I don’t want
       it to work against my client. Thank you, sir.

So, trial counsel admitted to the possibility that appellant did not understand the

potential ramifications of the hearing and candidly admitted to the trial court that he

could have possibly been clearer and gone into more detail with appellant on those

matters. These representations to the trial court fall short of demonstrating a complete


                                             5
lack of communication or any misstatement of the law by defense counsel to appellant.

And, contrary to appellant’s contention on appeal, the record suggests that appellant

was, indeed, aware of the hearing and understood, to some degree, the nature and

purpose of the hearing.     After closing arguments and in an attempt to respond to

appellant’s contentions that he was unaware that the hearing was scheduled, the trial

court explained that appellant’s wife had been in contact with the court a few days prior

to trial in an attempt to continue the proceedings and get a new lawyer for the hearing:


       I would note, too, I know my office had a call from Mr. Meeks’[s] wife
       indicating that maybe Randy Sherrod might be coming in, and I know
       Carley informed who she was speaking to that that’s not how we do things
       at the last minute. And so I know there was some – at least some
       indication of knowledge that – that this hearing was scheduled.

       While trial counsel’s candid representations to the trial court of his possible

shortcomings in communication with appellant are a laudable step to safeguard

appellant’s rights, to conclude that appellant was denied effective assistance of counsel

on the basis that trial counsel would or could have explained matters more thoroughly

would be to engage in the speculative, based-on-hindsight review of counsel’s

representation that we are not permitted to undertake. See Robertson, 187 S.W.3d at

483. Appellant is not entitled to error-free representation. That trial counsel recognizes

that he could have communicated more clearly with appellant is insufficient to satisfy the

first prong of the Strickland test for ineffectiveness when the record reveals no other

indication that trial counsel failed to effectively communicate with appellant.


       Even if we were to assume that trial counsel’s performance fell below an

objective standard of reasonableness, it remains that appellant has failed to

                                             6
demonstrate that trial counsel’s errors prejudiced him. That is, under the second prong

of Strickland, appellant must show a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. See Bahr

v. State, 295 S.W.3d 701, 710 (Tex.App.—Amarillo 2009, pet. ref’d). Even assuming

that the less-than-perfect communication suggested by trial counsel failed to clearly

convey that appellant faced the possibility of imprisonment, we note that the record

reveals that appellant admitted to the trial court that he had been informed of that

possibility on no less than three previous occasions. So, even if appellant were able to

demonstrate that trial counsel failed to effectively communicate with him and that such a

failure fell below an objective standard of reasonableness per Strickland’s first prong,

the record of his own admissions that he knew that he could possibly go to prison if his

deferred adjudication community supervision was revoked belie his assertion that he

was harmed by trial counsel’s failure to more clearly communicate with him.


      Assuming, too, that trial counsel’s failure to take the necessary steps to present

more mitigating evidence satisfied Strickland’s first prong, appellant again fails to

demonstrate that he was prejudiced by this alleged error. In his brief, appellant explains

that defense counsel should have presented evidence of positive changes in appellant’s

life as a result of AA meetings and a change in his medication because such evidence

would have, ―in all likelihood,‖ persuaded the trial court to not impose a prison sentence

or to, at least, impose a lesser one. We note, however, that such a conclusion is

untenable in light of the fact that the trial court did, in fact, hear evidence of such a

nature from appellant’s wife and, nonetheless, sentenced appellant to consecutive ten-

and five-year sentences.
                                            7
      So, the instant case stands in stark contrast to the scenario presented in Milburn

on which appellant relies and in which trial counsel admittedly failed to investigate or

evaluate any source of mitigating punishment evidence and, thus, failed to present any.

See Milburn, 15 S.W.3d at 270. Further, appellant fails to outline the source or nature

of further evidence of positive changes in appellant’s life and fails to demonstrate how

the failure to have more evidence of these changes lends itself to a reasonable

probability that, but for the failure to present more evidence of these positive changes,

the sentence imposed would have been a lesser one, especially in light of a record that

shows the several opportunities given to appellant and appellant’s consistent inability or

refusal to benefit from those opportunities by complying with the law. Having concluded

that appellant has failed to show by a preponderance of the evidence that defense

counsel was ineffective per Strickland, we overrule his sole issue.


                                       Conclusion


      Having overruled appellant’s sole issue on appeal, we affirm the trial court’s

judgments of conviction.




                                                       Mackey K. Hancock
                                                            Justice



Do not publish.




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