                             0*6-f5
OR\G\NM-                N0.11-12-00306-CR

        COURT OF APPEALS, ELEVENTH DISTRICT OF TEXAS

                         EASTLAND, TEXAS
                                                                       RECEIVED
                                                                  IN COURT OF APPEALS
                                                                   ELEVENTH DISTRICT
                                                                   MAR 23 2015
                                                              SHERRY WILLIAMSON, CLERK
                                                          y                        .Deputy
              TRAVIS EDWARD ANDERSON, APPELLANT



                               v.

                                                         COURT OF CRIMINAL APPEALS

                                                                MAR 25 2015
                  STATE OF TEXAS, APPELLEE
                                                          Abel Acosta, Clerk


                       BRIEF FOR   APPELLANT




             APPEALS   FROM CAUSE NUMBER    -CR20959




     35TH JUDICIAL DISTRICT COURT OF BROWN COUNTY, TEXAS




                                                          FILED IN
                                                 COURT OF CRIMINAL APPEALS

                                                         MAR 25 2015

                                                       Abel Acosta, Clerk
Opinion filed October 9, 2014




                                     In The



        eiebenty Court of Appeals;
                                No. 11-12-00306-CR



               TRAVIS EDWARD ANDERSON, Appellant

                                        V.


                     THE STATE OF TEXAS, Appellee


                      On Appeal from the 35th District Court
                                Brown County, Texas
                          Trial Court Cause No. CR20959




                      MEMORANDUM                OPINION

       This is an appeal from the revocation of Travis Edward Anderson's deferred
adjudication community supervision in a habitual fejony offender case. We affirm.
       The grand jury indicted Appellant for three counts of aggravated assault with
a deadly weapon. Appellant pleaded no contest, and the trial court placed him on
deferred adjudication community supervision for a term of ten years.
Subsequently, the State filed a motion to adjudicate and alleged that Appellant had
violated the terms of his community supervision when he committed the offense of
driving while intoxicated and the offense of assault on a public servant. The trial
court found the State's allegations to be true, revoked Appellant's community
supervision, and assessed Appellant's punishment at confinement for a term of
thirty-five years.
       Appellant presents two issues for our review. In his first issue, Appellant
argues that he received ineffective assistance of counsel when his lawyer failed to,
object to proceeding with the revocation hearing. He maintains that his lawyer
should have objected because the State had not filed a motion to adjudicate in the
appropriate case.    Appellant specifically argues that the State's motion was
numbered "20959," instead of "CR20959," and, thus, that the State failed to file a
motion to adjudicate in the appropriate cause number. Appellant also argues that
his trial counsel was deficient because trial counsel failed to move for a finding of
"not true" to the State's allegations when the State failed to prove that Appellant
was the "Travis Edward Anderson" who was on probation in Cause No. CR20959.
       The State argues that Appellant's claims regarding ineffective assistance of
counsel are extremely technical and that Appellant's counsel focused on more
substantive arguments instead. The State contends that defense counsel performed
well within the wide range of reasonable professional assistance to make a
strategic decision to focus on the more substantive arguments than the technical
arguments. The State also argues that, while an objection to the cause number
would have caused a temporary delay, the State could have refilled the motion with
the corrected cause number and the exact same allegations. The State asserts that
the strategic decision to focus on a substantive defense rather than a delaying tactic
is within the wide range of reasonable professional assistance. As to the issue of
identity, the State contends that there was sufficient evidence that Appellant was
                                          2
the same "Travis Edward Anderson" that was on probation because Judge Stephen
Ellis presided over both the plea proceeding and the hearing on the motion to
adjudicate.   Further, when Judge Ellis questioned Appellant on the record,
Appellant admitted the issue of identity.
      We agree with the State's arguments.         In order to determine whether
Appellant's trial counsel rendered ineffective assistance at trial, we must first
determine whether he has shown that his counsel's representation fe 1 below an
objective standard of reasonableness and, if so, then determine whether there is a
reasonable probability that the result would have been different but for his
counsel's errors.     Strickland v.   Washington, 466 U.S. 668, 687 (1984);
Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999); Hernandez v.
State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986). We must indulge a strong
presumption that counsel's conduct fell within the wide range of reasonable
professional assistance, and Appellant must overcome the presumption that, under
the circumstances, the challenged action could be considered trial strategy.
Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App.
2000). Where the record is silent, we cannot speculate on trial counsel's strategy.
Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).               Thus, an
allegation of ineffective assistance of counsel must be firmly founded in the record,
and the record must affirmatively demonstrate the alleged ineffectiveness.       Id.
Generally, the record on direct appeal will not be sufficient to show that trial
counsel's performance was so lacking as to overcome, the presumption of
reasonable conduct. Mat 813-14.

      Here, as the State points out, even if Appellant's counsel had moved to
quash the motion to adjudicate based on the fact that the motion was missing "CR"
in front of the cause number and even if the court had granted that motion, the
State could have refiled the motion or possibly amended the motion with the same
                                            3
allegations. Regardless of the fact that "CR" was missing from the number of the
case that appeared on the motion, it actually was filed in the appropriate case.
Appellant does not argue that he was surprised by the motion, nor does the record
show that there was any confusion as to the fact that a motion to adjudicate had
been filed against him. We cannot say that Appellant has shown that there is a
reasonable probability that the result of his case would have been different but for
defense counsel's failure to object to the cause number on the motion to adjudicate.
See, e.g., Fields v. State, No. 04-95-00325-CR, 1996 WL 382988, at *1 (Tex.
App.—San Antonio July 10, 1996, no pet.) (not designated for publication)
(holding that trial court did not err when it denied the motion to quash because
defendant presented no evidence to prove the clerical error in the cause number
prevented him from preparing his defense).
      As to the issue of identity, we find that, under the circumstances of this case,
the court could have found that Appellant was the same individual that was on
community supervision for three counts of aggravated assault with a deadly
weapon at the time the State rested its case. Although the State did noi; present any
direct evidence on whether Appellant was the same individual on community
supervision, Judge Ellis presided over the original case and sentenced Appellant to
community supervision for a term often years. Judge Ellis also presided over the
bifurcated hearing on the motion to adjudicate.
      In addition, the following exchange occurred between Judge Ellis and
Appellant during the hearing on the motion to adjudicate:
             THE COURT: Next case is Case No. CR20959, the State of
      Texas versus Travis Edward Anderson.


             What says the State?

             [PROSECUTOR]: Ready, Your Honor.
      THE COURT: And the Defense?


      [DEFENSE COUNSEL]: We're ready, Your Honor.

      THE COURT: Are you Travis Edward Anderson?

      THE DEFENDANT: Yes, sir.

      THE COURT: Mr. Anderson, you were indicted for the offense
of aggravated assault with a deadly weapon, three counts, a repeat
offender allegation was added to the indictment, as well as a habitual
offender allegation.

      And then back in January of 2011, you waived your right to a
jury trial. Later you appeared and pled no contest to the allegations,
pled true to the enhancement allegations, 10 years deferred
adjudication was given.

      So, it appears to me that since that time you have been on
deferred adjudication.

      Now, there's been a Motion to Adjudicate filed seeking to
adjudicate you. And that's what we're here on today. Is that correct?

      THE DEFENDANT: Yes, sir.




      THE COURT: All right. So, then, Mr. Anderson - December
2011, is that the operative motion, or is there another one?

      [DEFENSE COUNSEL]: That's the only one I'm aware of.

      THE COURT: Okay. So, that one alleges that on or about the
14th of December of 2011 in Brown County, Texas, that you
committed the offense of assault on a public servant. And then the
other allegation is that on or about that same date, in Brown County,
Texas, that you committed the offense of driving while intoxicated.
            So, you've got those two allegations occurring when you're
      allegedly still on probation. That's the allegation against you.

            Do you understand that, Mr. Anderson?

            THE DEFENDANT: Yes, sir.

      Kent involved a proceeding to revoke the appellant's probation. Kent v.
State, 809 S.W.2d 664, 665 (Tex. App.—Amarillo 1991, pet. ref d). There, the
appellant identified himself as being the defendant in the original case under the
same cause number as the revocation proceeding. Id. at 666. The appellant also
identified himself as being the person who was the subject of the revocation
proceeding. Id. The same trial judge heard both the original proceeding and the
revocation and took judicial notice of the court's file. Id. After the trial court
revoked the appellant's probation, the appellant claimed on appeal that the State
had failed to prove identity. Id.    The Seventh Court of Appeals rejected that
argument and affirmed the revocation. Id. at 666-68. But see Cobb v. State, 851
S.W.2d 871, 874 (Tex. Crim. App. 1993) (holding that, even though the court is
not required to take judicial notice of the judgment and order of probation, "[t]he
State must prove at a revocation hearing that the defendant is the same individual
as is reflected in the judgment and order of probation[ ] and that the individual
violated a term of probation as alleged in the motion to revoke."). Although the
State did not present any evidence regarding whether Appellant was the same
person that the trial court had placed on community supervision, we find that
Appellant's interaction with the trial court regarding the proceedings and the fact
that the same trial judge presided over both proceedings was sufficient for the trial
court to have found by a preponderance of the evidence that Appellant was the
same person. Thus, by the time the State rested its case, any motion for a finding
of "not true" by defense counsel, based on the argument that the State failed to
prove that Appellant was the "Travis Edward Anderson" on community
supervision, would have been futile. Therefore, Appellant has failed to show that
his counsel's performance fell below an objective standard of reasonableness.
      Moreover, the record shows that Appellant's counsel presented several
substantive arguments in order to persuade the court to find the allegations against
Appellant to be "not true." For example, counsel elicited testimony that Appellant
was not under the influence of alcohol or an illegal drug but was, instead, under the
influence of prescription drugs that had been prescribed to him and that he
regularly took those drugs for several medical issues. Counsel argued that the
officers who stopped Appellant were not aware of how Appellant normally acted,
that Appellant had medical issues and took medication for those issues, and that his
community supervision officer knew about those issues. Defense counsel also
argued that, based on the evidence that Appellant was flopping around on the floor
in the hospital when he kicked the officer, the court could reasonably conclude that
Appellant did not intentionally assault a public servant but, instead, kicked her by
accident. We disagree that Appellant received ineffective assistance of counsel,
and we overrule his first issue.

      During the punishment phase of his trial, Appellant asked the trial court to
allow him to fire his lawyer; the trial court denied that motion. In his second issue,
Appellant claims that the trial court erred when it denied the motion. The claim is
that the trial court's ruling resulted in the continued ineffective representation of
Appellant by defense counsel as discussed in his first issue. Because we have held
that Appellant has not shown that his counsel was ineffective under the two-prong
test in Strickland, we cannot say that the trial court erred when it denied his motion
to withdraw.    We also note that, in connection with his ineffective assistance
claims, Appellant actually raised different claims on appeal than those he urged to
the trial court when he asked the trial court to grant his motion to withdraw and to
appoint new counsel.
      At the punishment phase, defense counsel told the trial court that the defense
was not ready to proceed because Appellant was not satisfied with his
representation and that Appellant wanted counsel to withdraw. Counsel told the
court that he did not have a written motion to withdraw. The court allowed him to

present an oral motion and allowed Appellant to state on the record why he
believed counsel had not represented him adequately. Appellant told the trial court
that he had only met with counsel once in nine months and that it was only for ten
or fifteen minutes. He said that he did not feel like they had enough time together
to prepare for trial.   He also felt that counsel should have presented certain
evidence in the first part of the hearing on the motion to adjudicate that counsel did
not present. Defense counsel disagreed with Appellant, to some extent, and told
the court:

            I did the things I felt were appropriate and necessary. I would
      not say that I met with him frequently. I have met with him at the jail,
      at the courthouse, and we have corresponded on a number of
      occasions, but with regard to the trial strategy, there is one matter that
      Mr. Anderson would have liked for me to pursue and I did not.

Defense counsel did agree that there was a conflict between Appellant and him,
and he told the trial court that the conflict made it difficult, if not impossible, for
him to go forward with the case. The trial court asked Appellant why the court
was just now, on September 13, hearing about Appellant's complaints regarding
counsel's representation when the initial hearing was held on July 2. Appellant
responded that he had written the court a letter. The trial court denied the motion
to withdraw without further discussion.

       We review a trial court's denial of a motion to withdraw for an abuse of

discretion. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). In general,
personality conflicts and disagreements concerning trial strategy are not valid
grounds for withdrawal. Id.
      Here, the record shows that Appellant complained of defense counsel's
representation leading up to the first hearing on the motion to adjudicate, namely
that counsel did not spend enough time with him preparing the case. Appellant did
not make any specific arguments as to his counsel's performance between the date
of the first hearing in July and the punishment hearing in September. Furthermore,
Appellant did not notify the trial court at the hearing in July that he was dissatisfied
with his counsel's performance leading up to the hearing. The first time Appellant
notified the court that he was dissatisfied with his counsel's performance was on
August 15, when he sent a letter to the trial court. Appellant did not file his motion
requesting the court to release counsel until two days before the punishment
hearing. Based on Appellant's delay in complaining about counsel's performance
and on the fact that his complaints were generally based on strategic decisions, we
cannot say that the trial court abused its discretion when it denied Appellant's
motion to withdraw. We overrule Appellant's second issue.
       We affirm the judgment of the trial court.




                                                      JIM R. WRIGHT

                                                      CHIEF JUSTICE



October 9, 2014

Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
