                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NOS. 02-11-00008-CR
                                  02-11-00009-CR


AIKEM JHIMAY HILL                                                 APPELLANT

                                          V.

THE STATE OF TEXAS                                                     STATE


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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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                                   I. Introduction

      In a single point, Appellant Aikem Jhimay Hill complains that he received

ineffective assistance of counsel. We affirm.




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       See Tex. R. App. P. 47.4.
                        II. Factual and Procedural History

      The State charged Hill with two separate cases of burglary of a habitation.

In exchange for pleading guilty to these charges, Hill received seven years‘

deferred adjudication community supervision and a $700 fine in each case.

Around nine months later, the State filed petitions to proceed to adjudication in

each case, alleging that Hill had violated his community supervision‘s terms and

conditions.

      At the hearing on the State‘s petitions to proceed to adjudication, Hill

pleaded ―not true‖ to the State‘s allegations that he committed a new offense by

intentionally or knowingly causing bodily injury to a child and that he failed to pay

his supervision or crime stoppers fees.

      With regard to the injury-to-a-child allegation, Maricelo Vara, a Tarrant

County Public Health Department employee, testified that on August 10, 2010,

she saw Hill grab a two- or three-year-old child by the arm, yank the child up, and

take a swing at the child, hitting the child in the chest with his closed fist while he

and the child were in the waiting room. Vara said that the first time Hill grabbed

the child, he told him to sit still; the second time—when he struck the child—―he

told him to shut the ‗F‘ up.‖ The child began crying loudly. Vara went to her

supervisor and told her what she had seen. Her supervisor instructed her to call

the constable.

      Tarrant County Sheriff‘s Office Deputy Tiffany Lewis was dispatched to the

county health department and asked Hill what had happened. Hill told Deputy

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Lewis that the child, David (a pseudonym), had knocked over some water and

that he had tried to get David to sit down and be quiet; Hill claimed that he had

not physically touched David since spanking him ―on his butt‖ in the car in the

parking lot. Deputy Lewis spoke with Latrena Cortez, David‘s mother, who told

Deputy Lewis that she did not see the incident.

      Cortez gave Deputy Lewis permission to see David. When Cortez lifted

David‘s shirt, Deputy Lewis said that David flinched, made a protective motion

over his abdomen, and began to cry. Deputy Lewis did not see any visible signs

of injury to David, but he had a port on his lower abdomen with a plug on it—

Cortez told her that he had had the G-port since his birth and that it was a

feeding tube that he no longer needed. Cortez told Deputy Lewis that she did not

think Hill had done anything wrong because she had given him permission to hit

David on his arms.

      Deputy Lewis also testified without objection about speaking with two other

witnesses, Mr. and Mrs. Slanka, who informed her that they were sitting across

from Hill in the waiting room. Deputy Lewis testified that Mr. Slanka told her that

he saw Hill ―strike the child in the stomach area leading to the incident where the

water was wasted, and he saw [Hill] physically grab the child and push him down

into the chair where he was seated next to him.‖

      Contrary to Deputy Lewis‘s testimony, Cortez said that she saw the

incident and that Vara could not have because Cortez was standing in front of

her. Cortez said that David had been pouring water from his water bottle onto

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the floor and that she asked Hill to snatch the bottle out of David‘s hands. Cortez

said that Hill had just been trying to calm David, who had been fussy. She did

not see Hill hit David. Later, she took David to Cook Children‘s hospital for x-

rays, but the hospital staff did not find any broken bones and told her that David

was fine. Cortez said that she had given Hill permission to discipline David; she

acknowledged that she had signed an affidavit of nonprosecution the day before

the hearing and that she was pregnant with Hill‘s child.

      Hill testified that he did not cause bodily injury to David, that he did not hit

David with his fist, that Vara had just seen him snatch the water bottle out of

David‘s hands, that the Slankas had been mistaken about seeing him strike

David, and that Cortez had given him permission to discipline David. Hill also

said, ―Everything that those people said was true up until the strike,‖ and he

claimed that the incident had not been investigated properly. He also said that

he did not have the money to pay his community supervision fees.

      After hearing the evidence, the trial court found the injury-to-a-child

allegation true; it adjudicated Hill guilty in both burglary cases and sentenced him

to ten years‘ confinement in each case, to be served concurrently. This appeal

followed.

                     III. Ineffective Assistance of Counsel

     In his single point, Hill complains that he was denied effective assistance of

counsel because his trial counsel failed to make a Confrontation Clause objection

to Deputy Lewis‘s recitation of the Slankas‘ testimonial, out-of-court statements.

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      To establish ineffective assistance of counsel, 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. 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. 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).

      The record is devoid of evidence regarding counsel‘s reasons or strategy

for not objecting, and Hill did not file a motion for new trial. Therefore, no record

has been developed regarding why counsel did not object, and we are unable to

determine counsel‘s reasons for his actions or intentions. Because counsel‘s

action could have been part of a reasonable trial strategy, without more, we must

defer to counsel‘s decisions and deny relief. See Garza v. State, 213 S.W.3d

338, 347–48 (Tex. Crim. App. 2007) (overruling appellant‘s complaint that trial

counsel‘s failure to object to hearsay testimony that violated the Confrontation

Clause was ineffective assistance when counsel‘s reason for failing to object did

not appear in the record and his conduct could have been part of a reasonable

trial strategy).   Further, notwithstanding Deputy Lewis‘s testimony about the

Slankas, the trial court also heard Vara‘s account that she saw Hill strike David

and Deputy Lewis‘s account of her examination of David and his reaction, as well

as Cortez‘s and Hill‘s versions of the events in the waiting room. Because the

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evidentiary standard here is preponderance of the evidence, we cannot say that

there is a reasonable probability that the result of the trial would have been

different. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Rickels v. State,

202 S.W.3d 759, 763–64 (Tex. Crim. App. 2006). We overrule Hill‘s sole point.

                                  IV. Conclusion

      Having overruled Hill‘s sole point, we affirm the trial court‘s judgment.



                                                    PER CURIAM

PANEL: MCCOY, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 17, 2011




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