Affirmed and Opinion Filed May 28, 2015




                                          S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                        No. 05-14-01074-CR

                              DENNO WALLACE, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                     On Appeal from the Criminal District Court No. 2
                                  Dallas County, Texas
                           Trial Court Cause No. F-0873112-I

                             MEMORANDUM OPINION
                   Before Chief Justice Wright and Justices Myers and Evans
                               Opinion by Chief Justice Wright
       Appellant Denno Wallace was initially charged with aggravated assault; she pleaded

guilty to that offense. The trial court placed her on deferred adjudication community supervision

for five years and assessed a fine of $2500. After appellant failed to pay certain probation fees

and tested positive for marijuana use, the State moved to revoke her community supervision and

to proceed with adjudication of her guilt. Appellant pleaded true to the probation violations.

The trial court found her guilty and sentenced her to twelve years’ confinement. Appellant filed

a motion for new trial, contending she had received ineffective assistance of counsel at the

adjudication hearing. The trial court denied the motion for new trial, and this appeal followed.

We affirm the trial court’s judgment.
       In two issues, appellant contends the trial court erred by denying her motion for new trial.

Specifically, appellant asserts her attorney misrepresented her wishes concerning undergoing

drug treatment to the trial court. The purported misrepresentation occurred after an extended

exchange between appellant and the trial court:

       THE COURT:             [I]f you want a chance, I’ll give you a chance to go to [a
                              Substance Abuse Felony Punishment Facility (SAFPF)] if
                              you want to take drug treatment. If you don’t, that’s fine.
                              Do you want to take drug treatment or not?

       THE DEFENDANT: (No response.)

       THE COURT:             Yes or no?

       THE DEFENDANT: No.

       THE COURT:             No?

       THE DEFENDANT: (No response.)

       THE COURT:             No? If you don’t want to go, you don’t have to go. There’s
                              another place for you. Do you want to take the drug
                              treatment or not?

       THE DEFENDANT: No.

       THE COURT:             No. Okay. This is your chance.

       THE DEFENDANT: I want it.

       THE COURT:             Do you want the drug treatment? Yes or no? Now, what’s
                              the answer?

       THE DEFENDANT: Yes.

       THE COURT:             Okay. We’ll pass the case over and extend the terms and
                              conditions of probation and send her to SAFPF. And,
                              hopefully, that will straighten you out. I have a feeling
                              though that you really don’t want to be on probation and
                              probably the best solution is just go ahead and take -- you
                              know, I mean, going to drug treatment is hard.

       THE DEFENDANT: I’ve been on it for four years now, sir. And this is my
                      second mess up out of four years.

       THE COURT:             Well, there’s first chances, second chances and last
                              chances. Do you want to go to drug treatment? It’s hard.
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                             If you don’t want to go, that’s fine. This is your last chance
                             one way or another.

       THE DEFENDANT: I don’t have a choice, sir.

       THE COURT:            You have a choice. You can either take drug treatment or
                             not. I don’t care. I’m not the one that’s going to have the
                             drug problem. You’re the one that’s going to have the drug
                             problem. Do you want to take the drug treatment or not?

       (Sotto voce discussion between defendant and [defense counsel].)

       THE COURT:            You don’t really want the drug treatment, do you?

       THE DEFENDANT: It’s fine.

       THE COURT:            You don’t?

       THE DEFENDANT: I said it’s fine.

       THE COURT:            Fine, you do want it? Or fine, you don’t want it?

       THE DEFENDANT: Fine, I do.

       THE COURT:            I’m sorry. I can’t hear you.

       THE DEFENDANT: Fine, I do.

       THE COURT:            All right. We’ll give you -- continue you on and give you
                             SAFPF as another condition of your probation and extend
                             your probation so you’ll have time to do the SAFPF.

       (Sotto voce discussion between [d]efendant and [defense counsel].)

       MR. KURTZ:            Your Honor, my client has concluded that she wants to
                             complete her probation, but she does not want to go to
                             SAFPF.

       THE COURT:            Okay. The Court will go ahead and grant the motion to
                             proceed to adjudication and impose a sentence of 12 years
                             confinement in the Institutional Division.

In this Court, appellant contends she was willing to go to SAFPF, and her counsel was not

authorized to make the statement that she wanted to complete her probation without that

condition.




                                              –3–
       To prevail on her ineffective assistance claim, appellant must establish: (1) her trial

counsel’s representation fell below an objective standard of reasonableness in that counsel made

errors so serious that counsel was not functioning as the reasonably effective counsel guaranteed

by the state and federal constitutions; and (2) a reasonable probability exists that, but for

counsel’s unprofessional errors, the result of the trial would have been different. Strickland v.

Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App.

1986). We indulge a strong presumption that defense counsel’s conduct falls within the wide

range of reasonable, professional assistance and that the challenged actions might be considered

sound trial strategy. Jackson v. State, 877 S.W.2d 768, 770–71 (Tex. Crim. App. 1994). To

defeat this presumption, “any allegation of ineffectiveness must be firmly founded in the record,

and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9

S.W.3d 808, 812 (Tex. Crim. App. 1999).         When the record contains no evidence of the

reasoning behind trial counsel’s actions, we cannot conclude that counsel’s performance was

deficient. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003); Jackson, 877

S.W.2d at 771. We review the denial of a motion for new trial for abuse of discretion. Colyer v.

State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014).

       Appellant was the only witness at the hearing on the motion for new trial. She testified

the trial judge made it apparent at the adjudication hearing that she was either going to SAFPF or

to the penitentiary. Indeed, she testified that she understood those were her two options and she

knew if she did not go to SAFPF she “was going to the pen.” Therefore—although appellant

complains her counsel told her before the adjudication hearing that SAFPF was not likely—she

understood the trial judge’s position and understood her choice. Her equivocal responses to the

judge’s questions concerning drug treatment led him to question her closely as to whether she

really wanted to accept the drug-treatment option. The judge acknowledged that the SAFPF

                                               –4–
treatment was hard and confirmed that the choice to go or not to go was hers. After appellant’s

second conversation with her attorney, when he expressed that appellant had concluded she did

not want to go to SAFPF, the trial judge sentenced her as he indicated he would.

       Appellant testified her attorney did not have her authority to make that statement to the

court at the adjudication hearing. She testified she had been willing to go to SAFPF and that her

attorney misrepresented her wishes to the trial court. At the threshold, her testimony was subject

to the trial court’s evaluation for credibility. In that regard, the judge stated specifically that he

remembered the adjudication hearing very well, including appellant’s speaking to her attorney

and “what was said.” The judge could have disbelieved appellant’s testimony concerning what

she had instructed her attorney to say. See Riley v. State, 378 S.W.3d 453, 459 (Tex. Crim. App.

2012) (trial court is sole factfinder and judge of appellant’s credibility at motion for new trial

hearing). Moreover, because appellant’s attorney did not testify at the hearing on the motion for

new trial, he had no opportunity to explain his actions at the adjudication hearing. As a result—

even if uncertainty existed concerning whether appellant’s counsel had properly represented her

wishes—we have no explanation in the record for why he told the court what he did. When the

record contains no evidence of the reasoning behind trial counsel’s actions, we cannot conclude

that counsel’s performance was deficient. Rylander, 101 S.W.3d at 110–11.

       We discern no abuse of discretion in the trial court’s denial of appellant’s motion for new

trial. We overrule appellant’s issues and affirm the trial court’s judgment.


Do Not Publish
TEX. R. APP. P. 47
141074F.U05
                                                       /Carolyn Wright/
                                                       CAROLYN WRIGHT
                                                       CHIEF JUSTICE




                                                 –5–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

DENNO WALLACE, Appellant                          On Appeal from the Criminal District Court
                                                  No. 2, Dallas County, Texas
No. 05-14-01074-CR       V.                       Trial Court Cause No. F-0873112-I.
                                                  Opinion delivered by Chief Justice Wright.
THE STATE OF TEXAS, Appellee                      Justices Myers and Evans participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered May 28, 2015.




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