                        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

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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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                                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 years’ confinement in each case and asserts in two


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         … 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 years’ 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 Appellant’s community supervision officer felt that Appellant

should be given another chance. Appellant’s community supervision officer

recommended that Appellant be placed into a long-term treatment center to

combat his substance abuse problems. The trial court’s order sending Appellant

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to a treatment center and modifying the conditions of his community

supervision required that he obey all of the treatment center’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 years’ community

supervision. The terms of Appellant’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 center’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.




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      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 Appellant’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

years’ 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 counsel’s representation fell below

the standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’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.

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2005); Mallett v. State, 65 S.W.3d 59, 62–63 (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 counsel’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 counsel’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

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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 Appellant’s counsel did not solicit

testimony from an expert witness concerning the effect, if any, of Appellant’s

medication on his behavior, Appellant’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 “anxiety

ridden” when not taking his medication.2 Moreover, at the motion for new trial

hearing, the trial court received the letter from Appellant’s doctor opining that

Appellant’s failure to complete the treatment program “was directly related to

his being taken off the medication that had been stabilizing his mood,” but the

trial court denied Appellant’s motion for new trial. Thus, Appellant has not

shown that there is a reasonable probability that, but for counsel’s alleged



      2
      … Appellant does not explain how the admission of his medical records
might have led the trial court to assess a lesser sentence.

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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.—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

Appellant’s issues.

                               V. Conclusion

      Having overruled each of Appellant’s two issues, we affirm the trial

court’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




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