Affirmed as Modified and Memorandum Opinion filed November 13, 2018.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00410-CR

                        PATRICIO ESTRADA, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 179th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1404467

                  MEMORANDUM OPINION
      Patricio Estrada appeals the trial court’s judgment revoking his deferred
adjudication community supervision. Appellant contends that (1) he was denied
effective assistance of counsel; (2) the denial of effective assistance of counsel
rendered his plea of “true” involuntary; (3) his sentence constitutes cruel and unusual
punishment; and (4) the trial court’s judgment should be modified to reflect that his
plea was without an agreed recommendation, and to delete the assessed $500 fine
because no fine was pronounced by the trial court. We affirm the trial court’s
judgment as modified.

                                   BACKGROUND

      Appellant was indicted of the first degree felony of aggravated sexual assault
of a child after he made his 10-year old daughter perform oral sex on him. He
pleaded guilty to the charge in exchange for a six-year deferred adjudication of guilt
in 2014. The State filed a motion to adjudicate guilt in November 2014 alleging
numerous violations of the community supervision conditions. The State filed a
motion to dismiss after the trial court amended the community supervision
conditions. The State filed another motion to adjudicate guilt in December 2015
alleging numerous violations of the community supervision conditions, including
the usage of cocaine. The State dismissed the motion after appellant agreed to go to
a substance abuse residential treatment facility.

      The State filed a third motion to adjudicate guilt on March 22, 2016, after
appellant left the residential treatment facility without permission on March 18,
2016. Appellant was appointed counsel and pleaded true to the State’s allegation
that he violated the terms and conditions of his community supervision on August
26, 2017. The trial court “deferred any findings . . . so that [it] could hear some
witness testimony.” The trial court held a sentencing hearing on August 29, 2016.

      Appellant testified at the hearing regarding any diagnosis of mental disorders
as follows: “Throughout my life, started off with ADHD; at one point bipolar;
paranoia; severe depression; and then in 2010, I believe that’s when they said I have
the same symptoms as PTSD from seeing things that I [have] seen as a kid and the
things that happened to me.”

      Appellant also testified that the trial court had sent him to a residential
treatment facility because he was using drugs while on community supervision. He


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was at the facility for three months and participated in group treatment. Appellant
testified that one of the counselors disclosed that appellant was a sex offender during
a group meeting on March 18, 2016. Appellant claimed that a patient who heard
appellant was a sex offender sprayed disinfectant on appellant to try to set him on
fire, but appellant took the disinfectant and threw it away. According to appellant,
“couple of other guys said, Wait until tonight and we’ll ‘F’ him up.” Appellant
testified that, after “that was said, I just left because there was a lot of things that
went on there. The day before, there was a guy put in the hospital the day before
that.” Appellant admitted to setting off the fire alarm at the facility because that
caused the doors to unlock and he was able to leave the facility.

       When appellant was asked why he did not report to anyone at the treatment
facility that he had been threatened, he testified, “I was threatened through
communication. I was not going to put in a communication note and wait and see
what happened to me that night . . . I wasn’t going to wait until two people burned
me or whatever they were going to do.” Appellant testified that he did not contact
his probation officer or the trial court after he fled the facility. Appellant claimed
that he intended to “eventually come back, talk to the Court,” but he wanted to hire
an attorney first. Appellant testified that he knew he should not have left the facility.
He also testified that he was “aware that the judge can sentence [him] anywhere from
5 to 99 years to life.”

       The trial court found the allegations in the State’s motion to adjudicate true
based on appellant’s plea of true and sentenced appellant to 12 years’ confinement.
The trial court signed a judgment adjudicating guilt on August 29, 2016. Appellant
filed a timely notice of appeal.1 Before filing his appellate brief in this court,

1
 Although the record does not contain a document titled “Notice of Appeal,” the record does
contain trial counsel’s motion to withdraw filed September 7, 2016, in which counsel stated,
“Client wants to appeal the resolution of the case and the attorney of record is not an appellate
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appellant filed an application for writ of habeas corpus on October 19, 2016, which
was dismissed on November 2, 2016. See Ex parte Estrada, WR-85,893-01 (Tex.
Crim. App. Nov. 2, 2016). Appellant filed another application for writ of habeas
corpus on August 23, 2017, which the court dismissed on September 20, 2017,
“advis[ing] that the Court has denied without written order the application for writ
of habeas corpus on the findings of the trial court without a hearing.” See Ex parte
Estrada, WR-85,893-03 (Tex. Crim. App. Sept. 20, 2017). Although it is unclear
why appellant filed an application for writ of habeas corpus before exhausting his
appeals, this circumstance does not affect the disposition of this appeal.

                                            ANALYSIS

I.     Ineffective Assistance of Counsel

       Appellant argues in his first issue that his plea of “true” was involuntary
because he received ineffective assistance of counsel when his trial counsel failed to
(1) investigate an insanity defense; (2) “advise the appellant of the defense of ‘lack
of requisite intent,’ i.e., insanity, as well as the defenses of duress and necessity;”
and (3) “have the appellant plead ‘not true’ to the allegations that he violated the
terms of his probation.” Appellant argues in his second issue that he was denied
effective assistance of counsel at his motion to adjudicate punishment hearing
because his trial counsel failed to (1) investigate an insanity defense; (2) “advise the


attorney and a conflict may arise.” This filing suffices as a notice of appeal. A defendant’s pro se
application for appointment of counsel with the word “Appeal” written on top of the document
constituted a notice of appeal and was sufficient to invoke the appellate court’s jurisdiction in
Harkcom v. State, 484 S.W.3d 432, 434 (Tex. Crim. App. 2016). Harkcom stated, “We do not
require ‘magic words’ or a separate instrument to constitute notice of appeal. All that is required
is that the notice be in writing, be submitted within thirty days or ninety days after sentencing, as
appropriate, and show the party’s desire to appeal from the judgment or other appealable order.”
Following Harkcom, we conclude that trial counsel’s motion to withdraw stating that appellant
wants to appeal the case is sufficient notice of appeal to invoke appellate jurisdiction. See id.


                                                 4
appellant of the defense of ‘lack of requisite intent,’ i.e., insanity, as well as the
defenses of duress and necessity;” (3) “have the appellant plead ‘not true’ to the
allegations that he violated the terms of his probation;” and (4) object to his 12-year
sentence as cruel and unusual punishment.

      To prevail on a claim of ineffective assistance of counsel, an appellant must
show that (1) counsel’s performance was deficient because it fell below an objective
standard of reasonableness; and (2) the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 689 (1984); Lopez v. State, 343
S.W.3d 137, 142 (Tex. Crim. App. 2011).

      In order to satisfy the first prong, appellant must prove by a preponderance of
the evidence that trial counsel’s performance fell below an objective standard of
reasonableness under the prevailing professional norms. Lopez, 343 S.W.3d at 142.
A defendant must overcome a strong presumption that trial counsel’s actions fell
within the wide range of reasonable and professional assistance. See id.; Garza v.
State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007). “Before granting relief on a
claim that defense counsel failed to do something, we ordinarily require that counsel
be afforded the opportunity to outline the reasons for the omission.” Roberts v. State,
220 S.W.3d 521, 533-34 (Tex. Crim. App. 2007).

      If counsel’s reasons for his conduct do not appear in the record and there is at
least the possibility that the conduct could have been grounded in legitimate trial
strategy, we will defer to counsel’s decisions and deny relief on an ineffective
assistance claim. Garza, 213 S.W.3d at 348. “‘It is not sufficient that appellant
show, with the benefit of hindsight, that his counsel’s actions or omissions during
trial were merely of questionable competence.’” Lopez, 343 S.W.3d at 142-43
(quoting Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007)). To warrant
reversal when trial counsel has not been afforded an opportunity to explain his

                                          5
reasons, the challenged conduct must be “‘so outrageous that no competent attorney
would have engaged in it.’” Roberts, 220 S.W.3d at 533-34 (quoting Goodspeed v.
State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).

      To satisfy the second prong, appellant must show that there is a reasonable
probability — or a probability sufficient to undermine confidence in the outcome —
that the result of the proceeding would have been different but for counsel’s
unprofessional errors. Lopez, 343 S.W.3d at 142.

      In determining whether counsel was ineffective, we consider the totality of
the circumstances of the particular case. Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness.
Id.; see also Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)
(“Direct appeal is usually an inadequate vehicle for raising [an ineffective
assistance] claim because the record is generally undeveloped.”). Failure to satisfy
either prong of the Strickland test defeats an ineffective assistance claim. Strickland,
466 U.S. at 697.

      In support of his ineffective assistance claim, appellant cites to his application
for writ of habeas corpus and his trial counsel’s affidavit addressing the application.
He attached these documents as an appendix to his appellate brief. But these
documents were filed in a different proceeding and are not part of the record in this
appeal. This court cannot consider documents that are not included in the record on
appeal. See Yeske v. Piazza Del Arte, Inc., 513 S.W.3d 652, 672 n.5 (Tex. App.—
Houston [14th Dist.] 2016, no pet.) (“[T]his court cannot consider documents
attached to an appellate brief that are not contained in the appellate record.”); In re
J.A.M.R., 303 S.W.3d 422, 424-25 (Tex. App.—Dallas 2010, no pet.) (“Our record
does not include court records or notes from any other proceedings. Because the

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facts upon which appellant relies are not in the record before us, we cannot consider
them in determining whether the trial court erred in its findings.”); WorldPeace v.
Comm’n for Lawyer Discipline, 183 S.W.3d 451, 465 (Tex. App.—Houston [14th
Dist.] 2005, pet. denied) (“[W]e cannot consider documents attached as appendices
to briefs and must consider a case based solely upon the record filed.”); Burke v. Ins.
Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex. App.—Dallas 2005, pet. denied)
(“[A]n appellate court cannot consider documents or hearings that are cited in the
brief and attached as appendices if they are not formally included in the record on
appeal.”); Kaman v. State, 923 S.W.2d 129, 132 (Tex. App.—Houston [1st Dist.]
1996, no pet.) (“This Court cannot consider an item that is not a part of the record
on appeal.”); $429.30 In U.S. Currency v. State, 896 S.W.2d 363, 365 (Tex. App.—
Houston [1st Dist.] 1995, no pet.) (“We cannot consider documents attached to the
appellant’s brief that do not appear in the record.”).

       Further, an appellate record may be supplemented only with material that has
been omitted from the appellate record; supplementation cannot be used to create a
new appellate record with items that were not part of the trial record. See Solomon
v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) (disallowing defendant to
supplement appellate record with a document from another case); Berry v. State, 995
S.W.2d 699, 702 n.5 (Tex. Crim. App. 1999) (disallowing supplementation of
appellate record with “supplemental findings of fact and conclusions of law [that]
all refer to off-the-record conversations” because “these conversations were never
part of the trial record”).

       Because we cannot consider the documents appellant attached to his brief
since they do not appear in the appellate record, and appellant has not filed a motion
for new trial or developed a record in the trial court, the record before us is silent as
to the reasoning and strategy behind trial counsel’s actions or inactions.

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      Nonetheless, appellant contends there are four ways in which he allegedly was
denied effective assistance of counsel. Concerning appellant’s first two allegations,
the record is silent with regard to whether trial counsel investigated the “possibility
of an insanity defense” and advised appellant regarding the defenses of insanity,
duress, and necessity. Trial counsel may well have “investigated” an insanity
defense and her investigation led her to the conclusion that such a defense could not
be established in this case. We also do not know if trial counsel did or did not advise
appellant regarding the defenses of insanity, duress, and necessity prior to his plea
of true. Appellant contends that he had “at least three possible defenses” and that
“it was the [trial counsel’s] responsibility to know and explain these defenses.” But,
after talking to appellant and treatment facility personnel about what occurred at the
facility and what really caused appellant to leave the facility, his trial counsel could
have concluded that neither of the three defenses could be established and advised
appellant accordingly. Or trial counsel could have advised appellant regarding the
three defenses, and appellant decided he did not want to pursue the defenses.
Nothing in the record before us supports appellant’s contention that his trial counsel
failed to investigate an insanity defense or failed to advise him regarding the
defenses of insanity, duress, and necessity.

      With regard to his third allegation, appellant contends that his trial counsel’s
failure “to have appellant plead ‘not true’” to the State’s allegations that he violated
the terms of his community supervision by leaving his treatment facility constituted
ineffective assistance because he had three defenses for his conduct. This contention
fails because we do not know whether trial counsel advised appellant to plead true
to the State’s allegations or whether appellant insisted on pleading true in hopes that
the trial court would be more lenient. Even if trial counsel had advised him to plead
true, the decision could have been strategic and allowed appellant to plead for mercy


                                           8
and receive a more favorable treatment from the trial court. See Ayers v. State, 483
S.W.3d 230, 234 (Tex. App.—Texarkana 2016, pet. ref’d) (“Ayers’ trial strategy
was to admit his faults and wrongdoings and place himself at the mercy of the trial
court.”); Culver v. State, 786 S.W.2d 7, 9 (Tex. App.—Beaumont 1990, pet. ref’d)
(determining that a guilty plea can be a trial strategy).

      This contention also falls short because there is no evidence that appellant in
fact had three defenses. As stated above, trial counsel could have concluded that he
could not establish any defense after talking to appellant and hearing what the true
reasons and circumstances were that caused appellant to leave the treatment facility.
Trial counsel also could have investigated appellant’s version of events and the
personnel at the treatment facility may have negated appellant’s version so that trial
counsel concluded that a defense could not reasonably be argued to the court.

      Regarding his fourth allegation, appellant contends that his trial counsel’s
failure to object to his 12-year sentence as cruel and unusual punishment constituted
ineffective assistance of counsel because “[f]ailure to preserve error has been held
to be ineffective assistance of counsel.” But to successfully argue that his trial
counsel’s failure to object amounted to ineffective assistance, appellant must show
that the trial court would have committed error in overruling such an objection.
Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996) (per curiam).
Appellant cannot meet this burden. As we will discuss below, appellant’s sentence
does not constitute cruel and unusual punishment. Thus, had appellant’s trial
counsel objected to the assessed sentence on Eighth Amendment grounds, the trial
court would not have committed error in overruling that objection. An objection
would have been unsuccessful.

      Because the challenged conduct is not so outrageous that no competent
attorney would have engaged in it and there is no explanation in our record from

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appellant’s trial counsel for her actions or inactions in this case, we cannot conclude
that her actions and decisions were not reasonably professional and were not
motivated by sound trial strategy. See Lopez, 343 S.W.3d at 142; Roberts, 220
S.W.3d at 533-34; Garza, 213 S.W.3d at 348. We therefore conclude that trial
counsel’s performance did not fall below an objective standard of reasonableness
and appellant was not denied effective assistance of counsel. And because appellant
cannot establish an ineffective assistance claim, he also cannot prevail on his
argument that his trial counsel’s alleged ineffectiveness rendered his plea of “true”
involuntary.

      Accordingly, we overrule appellant’s first and second issues.

II.   Cruel and Unusual Punishment

      Appellant contends in his third issue that his sentence is disproportionate to
the offense for which he was charged and violates his Eighth Amendment right
against cruel and unusual punishment.

      Appellant failed to preserve error for review because he failed to object on
grounds of cruel and unusual punishment at his sentencing hearing. See Nicholas v.
State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (the
constitutional right to be free from cruel and unusual punishment may be waived by
failing to object). But even if appellant had preserved his complaint for review, we
would find no merit in it because he failed to show that his punishment was
disproportionate.

      We analyze appellant’s Eighth Amendment challenge by reviewing the
proportionality of the sentence compared to the crime. Arriaga v. State, 335 S.W.3d
331, 335 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d); see also Graham v.
Florida, 560 U.S. 48, 60 (2010). Our objective analysis is guided by (1) the gravity


                                          10
of the offense and the severity of the sentence; (2) the sentences imposed on other
defendants in the same jurisdiction; and (3) the sentences imposed for the
commission of the crime in other jurisdictions. Graham, 560 U.S. at 60; Arriaga,
335 S.W.3d at 335. Only if we find that the sentence is grossly disproportionate to
the offense under the first factor will we then consider the second two factors to
determine whether the sentence was unconstitutionally excessive. Graham, 560
U.S. at 60; Arriaga, 335 S.W.3d at 335.

      The Texas Legislature has determined that the first degree felony of
aggravated sexual assault of a child less than 14 years of age is punishable by
imprisonment for life, or by imprisonment for five to 99 years. See Tex. Penal Code
Ann. § 12.32 (Vernon 2011); § 22.021(a)(1)(B), (a)(2)(B), (e) (Vernon 2018). This
legislative policy determination is entitled to wide deference. Arriaga, 335 S.W.3d
at 335.

      Here, appellant’s 12-year sentence falls at the low end of the punishment
range permitted by the Texas Penal Code. Appellant admitted that he made his 10-
year old daughter perform oral sex on him. As we have stated in Bailey v. State,
“[b]y making the aggravated sexual assault of a child a first degree felony, the
legislature has identified the crime as among the most heinous acts addressed in the
penal code. And rightfully so; the impact on the victim emotionally, physically, and
psychologically is often quite severe and lifelong.” Bailey v. State, Nos. 14-01-
00486-CR & 14-01-00487-CR, 2002 WL 122295, at *2 (Tex. App.—Houston [14th
Dist.] Jan. 31, 2002, no pet.) (not designated for publication).

      We conclude that the trial court’s sentence of 12 years’ confinement is not
grossly disproportionate to appellant’s commission of aggravated sexual assault of
a child less than 14 years of age. See Arriaga, 335 S.W.3d at 336 (life imprisonment
sentence was not grossly disproportionate to appellant’s commission of aggravated

                                          11
sexual assault of a child less than 14 years of age); Williamson v. State, 175 S.W.3d
522, 525 (Tex. App.—Texarkana 2005, no pet.) (three consecutive life terms for
three counts of aggravated sexual assault of a child not grossly disproportionate);
Nunez v. State, 110 S.W.3d 681, 682 (Tex. App.—Corpus Christi 2003, no pet.) (20
years’ confinement was not grossly disproportionate to appellant’s commission of
aggravated sexual assault of a child less than 14 years of age); Alvarez v. State, 63
S.W.3d 578, 581 (Tex. App.—Fort Worth 2001, no pet.) (55 years’ confinement was
not grossly disproportionate to appellant’s commission of aggravated sexual assault
of his daughter who was less than 14 years of age); see also Williams v. State, No.
12-01-00311-CR, 2003 WL 1883474, at *5 (Tex. App.—Tyler Apr. 16, 2003, no
pet.) (mem. op., not designated for publication) (enhanced 99-year sentence for
sexual assault of a child was not grossly disproportionate punishment because crime
was a “serious” one against a minor with the potential for causing “severe emotional
harm” to the child); Bailey, 2002 WL 122295, at *2 (25 years’ confinement was not
grossly disproportionate to appellant’s commission of aggravated sexual assault of
his daughter who was less than 14 years of age).

       Accordingly, we overrule appellant’s third issue.

III.   Error in the Trial Court’s Judgment

       Appellant argues in his fourth issue that the trial court’s judgment should be
modified to (1) reflect that there was no plea bargain regarding his sentence on
adjudication of guilt; and (2) delete the assessed $500 fine because no fine was orally
pronounced by the trial court.

       The trial court’s judgment states that the “Terms of Plea Bargain” were “12
Years TDCJ-ID, $500 Fine.” The record is clear that there was no plea bargain
regarding appellant’s sentence at the time of his adjudication of guilt and that the
trial court did not pronounce a $500 fine during sentencing. The parties agree that
                                          12
the judgment should be modified to reflect that there was no plea bargain and to
delete the fine because no fine was orally pronounced at the sentencing hearing.

      “We have authority to reform a judgment to make the record speak the truth
when the matter has been called to our attention by any source,” and we “may reform
judgments to correct improper recitations or omissions” when we have the necessary
data for reformation. See Lopez v. State, 515 S.W.3d 547, 550 (Tex. App.—Houston
[14th Dist.] 2017, pet. ref’d); see also Storr v. State, 126 S.W.3d 647, 654-55 (Tex.
App.—Houston [14th Dist.] 2004, pet. ref’d) (judgment erroneously stated that
defendant pleaded guilty; court reformed judgment to reflect the defendant’s not
guilty plea). Further, the Court of Criminal Appeals has held that, when a trial court
does not orally pronounce a fine as part of a defendant’s sentence at the time his
guilt is adjudicated but includes a fine in the written judgment, the fine should be
deleted. See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004).

      Accordingly, we sustain appellant’s fourth issue and modify the trial court’s
August 29, 2016 judgment to delete the terms of the plea bargain and the $500 fee.

                                   CONCLUSION

      We overrule appellant’s first three issues. We sustain appellant’s fourth issue
and modify the trial court’s August 29, 2016 judgment to delete the terms of the plea
bargain and the $500 fee. We affirm the judgment as so modified.




                                              /s/    William Boyce
                                                     Justices


Panel consist of Justices Boyce, Donovan and Wise.
Do Not Publish — Tex. R. App. 47.2(b).

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