                                 NO. 12-16-00005-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

CHARDONE´ PRICE,                                §      APPEAL FROM THE 114TH
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      SMITH COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Chardone´ Price appeals her conviction for burglary of a habitation. In her sole issue,
Appellant argues that she received ineffective assistance of counsel. We affirm.


                                         BACKGROUND
       Appellant was charged by indictment with the offense of burglary of a habitation, a
second degree felony. According to law enforcement reports, Appellant kicked in the front door
of Crystal Walker’s house, entered the house, and hit Walker. During her assault of Walker,
Appellant also accidentally struck Walker’s child. Appellant and the State reached a plea
agreement in which Appellant agreed to plead “guilty” to the offense, and the State agreed to
recommend deferred adjudication community supervision.          At the plea hearing, Appellant
pleaded “guilty.” The trial court accepted Appellant’s plea and found sufficient evidence to
substantiate Appellant’s guilt. After receiving and reviewing a presentence investigation report
(PSI), the trial court followed the State’s sentencing recommendation, deferred further
proceedings without entering an adjudication of guilt, and ordered that Appellant be placed on
deferred adjudication community supervision for eight years.
       A few months later, the Tyler Police Department arrested Appellant on charges of theft
and providing false or fictitious information to a law enforcement officer. Because of these
charges and Appellant’s failure to pay certain fees required by her community supervision terms,
the State filed an application to proceed to final adjudication on the burglary of a habitation
charge. Appellant pleaded “true” to all of the paragraphs in the State’s application. The trial
court found the allegations to be “true,” adjudged Appellant guilty of burglary of a habitation,
and assessed her punishment at fifteen years of imprisonment.
       Appellant filed a motion for new trial in which she claimed that she received ineffective
assistance of counsel. After a hearing, the trial court denied the motion for new trial. This
appeal followed.


                            INEFFECTIVE ASSISTANCE OF COUNSEL
       In her sole issue, Appellant contends that her trial counsel provided ineffective assistance.
Specifically, Appellant argues that her trial counsel should have investigated Appellant’s school
records and mental health records in order to discover mitigating evidence.
Standard of Review and Applicable Law
       In reviewing an ineffective assistance of counsel claim, we follow the United States
Supreme Court's two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). See Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App.
1986). Under the first prong of the Strickland test, an appellant must show that counsel’s
performance was deficient. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. This requires an
appellant to demonstrate that counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms. See id., 466 U.S. at 688, 104 S. Ct. at 2064-
65.   To satisfy this requirement, the appellant must identify the acts or omissions of counsel
alleged to constitute ineffective assistance and affirmatively prove that they fell below the
professional norm for reasonableness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.
Crim. App. 1996).
       In any case considering the issue of ineffective assistance of counsel, we begin with the
strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994).      We must presume counsel’s actions and decisions were reasonably
professional and were motivated by sound trial strategy. See id.; see also Okonkwo v. State, 398
S.W.3d 689, 693 (Tex. Crim. App. 2013).              Appellant has the burden of rebutting this
presumption by presenting evidence illustrating the reasons for counsel’s actions and decisions.



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See Jackson, 877 S.W.2d at 771. Appellant cannot meet this burden if the record does not
affirmatively support the claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App.
2012). Moreover, before being condemned as unprofessional and incompetent, counsel should
be given an opportunity to explain her actions. See Bone v. State, 77 S.W.3d 828, 836 (Tex.
Crim. App. 2002). Thus, absent a properly developed record, an ineffective assistance claim
must usually be denied as speculative, and, further, such a claim cannot be built upon
retrospective speculation. Id. at 835.
        When the alleged ineffectiveness is based on a failure to investigate for mitigating
evidence, we consider the quantum of evidence known to counsel and whether the known
evidence would lead a reasonable attorney to investigate further.        Ex parte Martinez, 195
S.W.3d 713, 721 (Tex. Crim. App. 2006) (citing Wiggins v. Smith, 539 U.S. 510, 527, 123 S. Ct.
2527, 156 L. Ed. 2d 471 (2003)). In other words, we consider whether an appellant provided
information that would lead a reasonable attorney to investigate further. Id. at 729 (finding that
in capital murder context, defendant’s denial of mitigating factor considered along with other
factors in determining that trial counsel had not been ineffective.). The reviewing court will not
find ineffectiveness by isolating any portion of trial counsel’s representation, but will judge the
claim based on the totality of the representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at
2069.
        Under the second prong of the Strickland test, the appellant must affirmatively prove
prejudice from the deficient performance of her counsel. See Strickland, 466 U.S. at 687, 104 S.
Ct. 2064; Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.–Texarkana 2000, pet. ref’d). The
appellant must prove that her counsel’s errors, judged by the totality of the representation and not
by isolated instances of error, denied her a fair trial. Burruss, 20 S.W.3d at 186. It is not enough
for an appellant to show that the errors had some conceivable effect on the outcome of the
proceedings. Id. She instead must show that there is a reasonable probability that, but for her
counsel’s errors, the outcome would have been different either as to a reasonable doubt about her
guilt or the extent of her punishment. See id.; see also Bone, 77 S.W.3d at 836. A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466
U.S. at 694, 104 S. Ct. at 2068; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).
        Failure to make the required showing of either deficient performance or sufficient
prejudice defeats the ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.



                                                 3
App. 1999). Appellant must prove both prongs of the Strickland test by a preponderance of the
evidence in order to prevail. Tong, 25 S.W.3d at 712.
Analysis
       Appellant contends that her attorney should have conducted a more thorough
investigation into her school records and mental health records. She argues that these records
would have provided mitigating evidence, and that trial counsel’s failure to investigate
undermined confidence in the outcome. To determine whether Appellant met her burden to
establish that her trial counsel was ineffective, we analyze the entire record. See Strickland, 466
U.S. at 695, 104 S. Ct. at 2069.
       When Appellant pleaded “guilty” as part of her plea agreement with the State, the trial
court provided several warnings on the record. The trial court discussed the PSI with Appellant,
and Appellant understood that she was to provide “true answers” to the PSI questions and to the
interview questions from her community supervision officer. Appellant further confirmed that
she reads, writes, and understands English. She explained that she was confined in a mental
hospital the previous year, but her mother took her out of the hospital before she finished
treatment. She denied seeing a psychiatrist or psychologist. Appellant confirmed that she had
plenty of time to talk to her trial counsel about her case.
       The trial court also reminded Appellant that she had a right to a jury trial and explained
the role of the jury in the trial. Appellant’s trial counsel then informed the court, and Appellant
agreed, that counsel had sufficient time to discuss the nature of the allegations, punishment
range, and consequences of entering a guilty plea with Appellant. Trial counsel believed that
Appellant was competent, and the State had no evidence that Appellant was incompetent. The
trial court then recessed the hearing so that the PSI could be completed.
       The information in the PSI showed that Appellant had no present physical, medical, or
mental impairment, but had been treated previously at East Texas Medical Center—Behavioral
Health Center (BHC). She was not enrolled in special classes in school, and was a student at
Tyler Independent School District’s PACE High School. Appellant was identified as literate and
having the job skills of cashier and housekeeping. She was employed as a housekeeper at UT
Health Northeast, but was also receiving monthly disability benefits.
       The trial court held a hearing to determine Appellant’s sentence.           At that hearing,
Appellant’s trial counsel called the trial court’s attention to errors in the PSI. She also indicated



                                                  4
that she had asked Appellant about an argument between Appellant and her mother that resulted
in Appellant’s being taken to BHC. Appellant confirmed that she went to BHC. In response to
further questions from the trial court, Appellant confirmed that she was pregnant and in the
PACE program for high school. She did not identify any errors in her PSI other than the
criminal history and the error in her age that her trial counsel had mentioned.          Appellant
confirmed that she worked at UT Health Northeast. The trial court informed Appellant that if
she failed to comply with the conditions of community supervision and it was revoked, she could
be sentenced to anywhere from two to twenty years in prison. Appellant again stated that she
was satisfied with trial counsel’s representation of her.
       A few months later, the trial court held a hearing on the State’s application to proceed to
final adjudication.   Appellant pleaded “true” to all of the State’s allegations.        Appellant
reconfirmed that she reads, writes, and understands English. She again mentioned being in a
mental hospital after getting into an argument with her mother, but said she did not stay in the
hospital long enough for a diagnosis. She stated that she had not been diagnosed with a mental
illness and was not under any kind of psychiatric treatment. Appellant also confirmed that she
had plenty of time to talk to her trial counsel about her case.
       The trial court found the State’s allegations in the application to be “true” and adjudged
Appellant “guilty” of the offense. Neither the State nor the defense presented evidence in the
punishment phrase of the case. The State requested that the trial court sentence Appellant to
imprisonment for fifteen years. Appellant’s trial counsel conceded that Appellant wasted an
opportunity when she violated the terms of her deferred adjudication community supervision.
She asked the trial court to consider that Appellant took full responsibility for her actions and
that Appellant had no prior criminal history.         Trial counsel asked the trial court to assess
Appellant’s punishment in the “middle of the lower range” of punishment. The trial court
assessed Appellant’s punishment at fifteen years of imprisonment. After she was sentenced,
Appellant once again confirmed that she was satisfied with her trial counsel’s representation.
       Appellant filed a motion for new trial in which she included a claim that her trial counsel
had provided ineffective assistance of counsel. Specifically, in the affidavit attached to her
motion, Appellant claimed that trial counsel met with her only at the Smith County Courthouse
and did not review discovery materials in any meaningful way. Appellant further claimed that
trial counsel did not ask Appellant about special education classes or her treatment at BHC.



                                                  5
Katrina Mosley, Appellant’s mother, also provided an affidavit in support of Appellant’s motion
for new trial. Mosley averred that Appellant had been in special education classes since middle
school. She further claimed that Appellant received accommodations and passed a modified
TAKS test. Finally, Mosley claimed that a child psychologist had diagnosed Appellant with
Attention Deficit Disorder (ADD) and borderline mental retardation.
       Appellant attached her records from Tyler Independent School District (TISD) to the
motion for new trial. These records showed that Appellant was in special education classes and
was a student at TISD’s PACE high school program. The records further documented that
Appellant met the eligibility criteria as a student with an “Other Health Impairment” based on a
diagnosis of Attention Deficit Hyperactivity Disorder (ADHD).          The school records also
documented that Appellant was pregnant and not taking medications. According to the records,
Appellant was doing well in high school, was passing all academic subjects, and had passed all
parts of the state mandated tests. Appellant was rated as having average proficiency in English.
The school records demonstrated that Appellant had tested lower in junior high, with a number
of scores in the lower extreme or below average ranking.
       The trial court held a hearing on Appellant’s motion for new trial. At that hearing,
Appellant offered an evaluation from Clinical Associates of East Texas regarding Appellant’s
disability determination. Mosley testified at the hearing and stated that Appellant graduated
from TISD through the special education program. Appellant also received social security
disability until she was eighteen. Mosley stated that she was at every meeting with Appellant
and her trial counsel, and that all of these meetings occurred at the courthouse. Mosley further
claimed that trial counsel never discussed any issues with her regarding Appellant’s mental
health ability, status, special education, or disability payments. According to Mosley, trial
counsel never questioned her or Appellant regarding any of Appellant’s limitations. On cross-
examination, Mosley said that she told trial counsel that Appellant had a disability, but she did
not tell her that Appellant was diagnosed with borderline mental retardation.
       Appellant’s trial counsel also testified at the hearing. She stated that she has been
licensed to practice law in Texas for more than forty years, and she has represented many
criminal defendants during her practice. She confirmed that her face-to-face meetings with
Appellant were always at the courthouse, but she also spoke to Appellant by telephone. Trial
counsel said that she had no indication that Appellant had a sanity or competency issue. She



                                                6
believed that a recommendation for deferred adjudication community supervision was a good
result for Appellant because she did not believe a “not guilty” verdict was possible based on the
facts. Trial counsel said that Appellant’s being on disability and taking special education classes
should have been included in the PSI if Appellant answered the questions truthfully and
completely. Counsel testified that she never had any reason to believe that Appellant did not
understand the consequences of her plea of “guilty.” She felt as though Appellant had sufficient
time to discuss the case with her.
       Trial counsel testified that Mosley or another family member was generally present
during her conversations with Appellant. She testified that Mosley never told her that Appellant
was not understanding the proceedings or that Appellant had mental health concerns. Trial
counsel believed that Appellant had the capacity to disclose facts and events that could help her
case. Appellant provided appropriate responses to all of her questions.
       Trial counsel related that when she received notice of the application to revoke
Appellant’s community supervision, she contacted Appellant and was told that Appellant was in
the hospital having a baby. She then filed a motion to continue the hearing. She testified that
most of her contact after the State filed the application was with Appellant’s mother. Trial
counsel stated that she called Mosley several times, but never received a response from Mosley
or Appellant. As a result, she was unable to meet with Appellant after the State filed the
application to revoke until the day of the hearing.
       The trial court noted its awareness of various aspects of Appellant’s history. Specifically,
the court noted that the PSI showed Appellant was in TISD’s PACE high school program, and
that Appellant said she had not been in special education classes. The trial court also was aware
that Appellant had not been treated at an MHMR facility, was not taking any medications other
than prenatal vitamins when she pleaded guilty, and had been to BHC. Finally, the trial court
knew that Appellant had obtained a finding of disability, but also was gainfully employed at a
hospital when she pleaded “guilty.” The trial court denied Appellant’s motion for new trial.
Conclusion
       In response to a question in the PSI, Appellant stated that she did not attend special
classes in school. Neither Appellant nor her mother claimed that Appellant had been enrolled in
special education classes until after Appellant had been sentenced. Because Appellant failed to
provide information about her special education classes that would have led trial counsel to



                                                 7
investigate further, her trial counsel’s representation was not defective for her failure to subpoena
Appellant’s school records. See In re Martinez, 195 S.W.3d at 728-29. Similarly, Appellant
repeatedly stated that she had been hospitalized in a mental institution, but that she had no
physical, medical, or mental impairment.                Mosley claimed that she told trial counsel that
Appellant had a disability. But trial counsel testified that neither Appellant nor Mosley told her
that Appellant had mental health concerns. Accordingly, trial counsel’s representation was not
defective for her failure to investigate Appellant’s mental health records. See id.
         Further, Appellant failed to show that she was prejudiced by trial counsel’s lack of
investigation. The records presented at the hearing on Appellant’s motion for new trial showed
that Appellant had been diagnosed with ADD or ADHD, had taken special education classes, and
had received disability benefits. The trial court was aware that Appellant had been treated at
BHC and that she had been receiving disability benefits. We have no reason to believe that the
trial court would have sentenced Appellant to less than fifteen years for burglary of a habitation
based on Appellant’s having been diagnosed with ADD or ADHD, receiving disability benefits,
or having taken special education classes. See Bone v. State, 77 S.W.3d at 836.
         Because Appellant failed to carry her burden under Strickland, we overrule Appellant’s
sole issue.


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


                                                                        BRIAN HOYLE
                                                                           Justice

Opinion delivered August 31, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                           AUGUST 31, 2016


                                          NO. 12-16-00005-CR


                                       CHARDONE´ PRICE,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                 Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No. 114-1289-13)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                        Brian Hoyle, Justice.
                        Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
