                                    NO. 07-05-0189-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL D

                                   MAY 31, 2006
                          ______________________________

                                      VICTOR VEGA,

                                                                 Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

             FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;

                    NO. 3924; HON. STEVEN EMMERT, PRESIDING
                         _______________________________

                                Memorandum Opinion
                          _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       Appellant, Victor Vega, appeals from an order adjudicating his guilt for aggravated

sexual assault (of a minor) and sentencing him to ten years imprisonment. The trial court

originally deferred the adjudication of his guilt and placed him on probation. Thereafter, the

State moved to adjudicate guilt because he purportedly violated several conditions of his

community supervision. After appellant pled true to various of the State’s allegations, the

trial court granted the motion, adjudicated him guilty, and levied the aforementioned
sentence. Before us, appellant contends that he was denied the effective assistance of

counsel which denial affected his punishment. We overrule the issue and affirm the

judgment of the trial court.

       To prevail on a claim of ineffective assistance, the claimant has the burden to prove

not only deficient performance but also prejudice. Andrews v. State, 159 S.W.3d 98, 101

(Tex. Crim. App. 2005); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). If

either or both requirements go unsatisfied, then the claim must be rejected. Bone v. State,

77 S.W.3d at 833 n.8. Additionally, the claim of ineffectiveness must be firmly founded in

the record. Thompson v. State, 3 S.W.3d 808, 813 (Tex. Crim. App. 1999). Finally, one

is prejudiced by deficient performance when the circumstances establish a reasonable

probability that, but for the conduct, the result of the proceeding would have differed.

Andrews v. State, 159 S.W.3d at 102.

       The allegedly deficient performance here consisted of trial counsel admitting into

evidence (at the adjudication hearing) the entire file of the probation department and, in

effort to obtain leniency here, alluding to other cases wherein the trial court evinced

leniency. Regarding the former, the file contained information indicating that appellant had

forcibly raped the 15-year-old victim; the trial court originally believed that he had simply

engaged in voluntary sex with a minor or committed statutory rape. Regarding the latter

(i.e. counsel’s argument), the words used depicted more of a challenge to the trial court to

be lenient given the court’s actions in other cases purportedly of greater severity.

Assuming arguendo that these instances arose to the level of unreasonably defective

performance, we nonetheless conclude that appellant failed to establish that they resulted

in prejudice.

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       The record discloses that of the various conditions of his probation, appellant

violated those obligating him to pay costs of court, to pay community supervision fees, to

refrain from having physical contact with minors, and to attend counseling sessions and pay

counseling fees. Moreover, appellant pled true to all but one, though the trial court

ultimately found all the allegations of the State to be true. Next, evidence presented at the

hearing disclosed that appellant had also gone to Mexico while on probation and without

permission from his probation officer.       And, regarding the condition concerning the

avoidance of physical contact with a minor, the evidence illustrated that appellant

cohabitated with a 16-year-old female while serving his community supervision. And, aside

from alluding to the trial court’s surprise in discovering that appellant actually raped the 15-

year-old victim, we are cited to nothing suggesting that the trial court had a tendency to

retain felons on probation after they left the country without permission, engaged in

physical/sexual contact with minors contrary to court order, and otherwise violated the

terms of their probation. Furthermore, it may be that the trial court evinced surprise in

discovering the instance of forcible rape. Yet, it does not logically follow that had the

information remained unknown to the court, it would have allowed appellant to remain free.

Nor can we escape the fact that the ten-year sentence levied was far less than the life term

that the trial court could have assessed.

       Simply put, we are left to speculate at what would have occurred had counsel neither

introduced the file nor uttered the argument in question. And, speculation is not enough

to establish a reasonable probability that the outcome would have differed but for those

actions. Accordingly, appellant did not satisfy the burden imposed by Andrews, Bone, or

Thompson; so, we affirm the trial court’s judgment.

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                      Brian Quinn
                      Chief Justice

Do not publish.




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