Opinion issued July 26, 2012




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                               NO. 01-11-00842-CR
                           ———————————
                    MATTHEW LEE ADAME, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 232nd District Court
                           Harris County, Texas
                       Trial Court Case No. 1211396



                         MEMORANDUM OPINION

      Appellant, Matthew Lee Adame, was charged by indictment with aggravated

robbery with a deadly weapon.1 Appellant pleaded guilty. The trial court deferred

1
      See TEX. PENAL CODE ANN. § 29.03 (Vernon 2011).
adjudication of guilt and placed appellant on community supervision for five years.

The State filed a motion to adjudicate guilt based on a charge of burglary of a

vehicle.   The trial court found the allegation to be true and entered a final

adjudication of guilt of the original indictment.     The trial court assessed a

punishment of 12 years’ confinement. In two issues, appellant argues that (1) there

was insufficient evidence to support adjudication and (2) he received ineffective

assistance of counsel during the sentencing phase.

      We affirm.

                                    Background

      On August 7, 2009, appellant pleaded guilty to a charge of aggravated

robbery with a deadly weapon. Appellant was placed on five years’ community

supervision deferred adjudication.      One condition of appellant’s community

supervision was that he would “[c]ommit no offense against the laws of this or any

other State or of the United States.”

      On May 7, 2011, at approximately 2:00 a.m., two police officers came upon

appellant and his uncle, Leonard Ernest Guzman. Appellant was sitting in the

driver’s side of his car, and Guzman was digging through the trunk of a

neighboring car. When the police officers stopped, appellant stepped out of his car

and moved away from the police and toward the front of the car. When he was

told to stop, appellant did so. The police officers found that the keyhole of the


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trunk of the second car had been pried, bent, and dented. There were various tools

on the ground and in the back seat of appellant’s car. The police officers located

the owner of the second vehicle, Ezequiel Ramirez, who told the officers that the

car belonged to him, as did the tools on the ground and in appellant’s car.

Appellant was arrested.

      Based on that arrest, the State filed a motion to revoke appellant’s

community supervision, alleging that he had violated a condition of his community

supervision. Appellant entered a plea of not true. The trial court found the

allegation to be true and made a final adjudication of guilt.       Appellant was

sentenced to 12 years’ confinement.

                               Sufficiency of Evidence

      In his first issue, appellant argues that the evidence was insufficient to

support final adjudication.

A.    Standard of Review

      A trial court’s determination on a motion to adjudicate is reviewable in the

same manner as a determination of a motion to revoke community supervision.

TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(b) (Vernon Supp. 2011). A revocation

proceeding is neither criminal nor civil in nature; rather, it is an administrative

proceeding. Canseco v. State, 199 S.W.3d 437, 438 (Tex. App.—Houston [1st

Dist.] 2006, pet. ref’d).     At a revocation hearing, the State must prove by a


                                          3
preponderance of the evidence that the defendant has violated a condition of his

community supervision. Id. at 438–39. The State satisfies its burden if the greater

weight of the credible evidence creates a reasonable belief that the defendant

violated a condition of his probation as alleged by the State. Solis v. State, 589

S.W.2d 444, 447 (Tex. Crim. App. 1979); Armstrong v. State, 82 S.W.3d 444, 448

(Tex. App.—Austin 2002, pet. ref’d). Proof of a single violation is sufficient to

support a revocation. Canseco, 199 S.W.3d at 439.

      Our review of an order adjudicating guilt and revoking community

supervision is limited to determining whether the trial court abused its discretion in

determining that the defendant violated the terms of his community supervision.

Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Duncan v. State,

321 S.W.3d 53, 56–57 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). We view

the evidence in the light most favorable to the trial court’s order. Canseco, 199

S.W.3d at 439; Duncan, 321 S.W.3d at 57. As the trier of fact at a revocation

proceeding, the trial court determines the credibility of the witnesses and the

weight to be given to their testimony. Armstrong, 82 S.W.3d at 448.

B.    Analysis

      Appellant contends that the trial court abused its discretion when it found

that he violated the terms of his community supervision by committing the offense

of being a party to a burglary of a vehicle. We disagree.


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      Appellant was found to have violated Penal Code section 30.04, which

provides, “A person commits an offense if, without the effective consent of the

owner, he breaks into or enters a vehicle or any part of a vehicle with intent to

commit any felony or theft.” TEX. PENAL CODE ANN. § 30.04 (Vernon 2011). The

State sought to charge appellant under the law of parties. Under section 7.02 of the

Texas Penal Code, “[a] person is criminally responsible for an offense committed

by the conduct of another if . . . acting with intent to promote or assist the

commission of the offense, he . . . aids, or attempts to aid the other person to

commit the offense.” TEX. PENAL CODE ANN. § 7.02(a)(2) (Vernon 2011).

      Appellant contends that the State failed to offer sufficient proof to establish

the required actus reus. More specifically, appellant contends that the State’s

evidence failed to show that he participated in the crime. Instead, appellant argues,

the evidence shows no more than his mere presence.

      Mere presence at the scene of the offense is not enough to make one a party,

but may be sufficient, when taken with other evidence to show that he was a

participant. Wygal v. State, 555 S.W.2d 465, 469 n.3 (Tex. Crim. App. 1977). The

fact-finder may consider events occurring before, during, and after the commission

of the offense in determining whether a person is a party. Id. at 468–69; Diaz v.

State, 902 S.W.2d 149, 151–52 (Tex. App.—Houston [1st Dist.] 1995, no pet.).




                                         5
      Appellant’s common-law wife testified that Guzman came to appellant in

the middle of the night to ask for a ride. At the hearing, appellant testified that he

was the owner of his vehicle and that he used it to give Guzman a ride to the

location where they were both arrested for robbery of a vehicle.

      The arresting officer testified that appellant got out of his vehicle and began

to walk away when the police arrived. The officer stated that in his opinion,

appellant “was the getaway driver.”

      Ramirez testified that he owned the burglarized vehicle and the tools inside

the trunk. He also testified that he had not given consent to appellant or Guzman

to be in his vehicle or to move his tools from his trunk to appellant’s car.

      In short, appellant had agreed to drive his uncle somewhere in the middle of

the night. He was in his car while his uncle was breaking in to a nearby car and

transferring items into appellant’s car. When police arrived, appellant tried to walk

away. This is sufficient evidence to support a finding by a preponderance of the

evidence that appellant was more than merely present during the commission of

the crime. See Solis, 589 S.W.2d at 447 (requiring the greater weight of the

credible evidence to create a reasonable belief that the defendant violated a

condition of his probation as alleged by the State).

      Appellant contended that he was “half asleep” and “drowsy” while Guzman

moved Ramirez’s tools from Ramirez’s car to appellant’s car. Appellant also

                                           6
testified that he was aware that Guzman put a bag in the back of his car, but he did

not testify as to whether he knew the contents of the bag. At most, this created a

conflict in the evidence, which is left to the fact finder to resolve. Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We may not re-evaluate the

weight and credibility of the record evidence and thereby substitute our judgment

for that of the fact-finder. Id.

      Viewing the evidence in the light most favorable to the court’s order, we

hold that the trial court could have reasonably found by a preponderance of the

evidence that appellant aided or attempted to aid Guzman in committing the

offense of vehicle burglary, thus violating a condition of his community

supervision. We overrule appellant’s first issue.

                          Ineffective Assistance of Counsel

      In his second issue, appellant contends that he received ineffective assistance

of counsel during the punishment phase. Specifically, appellant asserts that his

counsel failed “to develop and present a mitigation theme of mental illness through

the [presentence investigation] process.”

A.    Standard of Review

      The Sixth Amendment to the United States Constitution guarantees the right

to reasonably effective assistance of counsel in criminal prosecutions. See U.S.

CONST. amend. VI. To show ineffective assistance of counsel, a defendant must


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demonstrate both (1) that his counsel’s performance fell below an objective

standard of reasonableness and (2) that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052,

2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App.

2005). Failure to make the required showing of either deficient performance or

sufficient prejudice defeats the ineffectiveness claim. See Williams v. State, 301

S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 S.W.3d at 101.

      An appellant bears the burden of proving by a preponderance of the

evidence that his counsel was ineffective. 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. at 814. We presume that a counsel’s conduct falls within the

wide range of reasonable professional assistance, and we will find a counsel’s

performance deficient only if the conduct is so outrageous that no competent

attorney would have engaged in it. Andrews, 159 S.W.3d at 101.

      The Court of Criminal Appeals recently stated that “[i]n making an

assessment of effective assistance of counsel, an appellate court must review the

totality of the representation and the circumstances of each case without the benefit

of hindsight.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). The

                                         8
court further stated that demonstrating ineffective assistance of counsel on direct

appeal is “a difficult hurdle to overcome.” Id. The court instructed, “[T]he record

must demonstrate that counsel’s performance fell below an objective standard of

reasonableness as a matter of law, and that no reasonable trial strategy could justify

trial counsel’s acts or omissions, regardless of his or her subjective reasoning.” Id.

B.    Analysis

      Appellant contends that he was denied effective assistance of counsel at his

revocation hearing because his counsel failed to “press for a mental health

evaluation as part of a [presentence investigation].” Appellant relies on article

42.12, section 9(i) of the Code of Criminal Procedure, which states that a

presentence investigation shall include a psychological evaluation if it appears the

defendant has a mental impairment. See TEX. CODE CRIM. PROC. ANN. art. 42.12

§ 9(i) (Vernon Supp. 2011).

      Although section 9(a) requires a presentence investigation to be conducted

before sentencing,2 the right to a presentence investigation may be waived. See

TEX. CODE CRIM. PROC. ANN. art. 42.12 §9(a); Welch v. State, 335 S.W.3d 376,

382 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). A defendant may waive

any right secured to him by law, including the right to a presentence investigation

2
      Subsection (a) provides that “before the imposition of sentence by a judge in a
      felony case . . . the judge shall direct a supervision officer to report to the judge in
      writing on the circumstances of the offense with which the defendant is charged.”
      TEX. CODE CRIM. PROC. ANN. art. 42.12 § 9(a) (Vernon Supp. 2011).
                                             9
report. See TEX. CODE CRIM. PROC. ANN. art. 1.14(a) (Vernon 2005); see also

Welch, 335 S.W.3d at 382.

      At the plea phase of the trial, appellant stated in writing: “I do not want the

probation department to prepare a presentence investigation report, and I give up

any right to have such a report prepared in this case.” Final adjudication of guilt

and sentencing are part of the same proceeding as the plea phase. See TEX. CODE

CRIM. PROC. ANN. art. 42.12 § 5(b) (“After an adjudication of guilt, all

proceedings, including assessment of punishment, pronouncement of sentence,

granting of community supervision, and defendant’s appeal continue as if the

adjudication of guilt had not been deferred.”). The trial court is not required to

have a presentence investigation report prepared when there has been a waiver of

that right at the plea phase. Griffith v. State, 166 S.W.3d 261, 265 (Tex. Crim.

App. 2005). “Because the initial plea and the adjudication and sentencing [are]

really one legal proceeding, the appellant’s waiver continue[s] to be effective.” Id.

      It is reasonable to conclude that counsel was aware of the effective waiver at

the plea phase and, for that reason, did not seek a presentence investigation report.

Trial counsel could have considered an objection to the lack of a psychological

evaluation in the presentence investigation report futile, given that appellant had

waived any right to have a presentence investigation report prepared. Trial counsel

is not ineffective for failure to make futile objections. See Ex parte White, 160

                                         10
S.W.3d 46, 53 (Tex. Crim. App. 2004); Vaughn v. State, 931 S.W.2d 564, 566

(Tex. Crim. App. 1996); see also Edmond v. State, 116 S.W.3d 110, 115 (Tex.

App.—Houston [14th Dist.] 2002, pet. ref’d) (stating trial counsel is not ineffective

for failing to make a frivolous objection).

      Appellant relies on Welch v. State, 335 S.W.3d 376 (Tex. App.—Houston

[14th Dist.] 2011, pet. ref’d) to support his claim of ineffective assistance of

counsel. In Welch, the defendant contended that the trial court had an obligation to

consider mitigating factors regarding personal culpability, specifically mental

competence. 335 S.W.3d at 378. The Fourteenth Court of Appeals held that the

trial court did not have an obligation to “scrutinize the universe of mitigating

factors that might remain undiscovered in the case.” Id. at 381. The court further

held that “[t]he right to a psychological evaluation may be forfeited, just as the

right to a presentence investigation generally.” Id. at 382 (citing Summers v. State,

942 S.W.2d 695, 696–97 (Tex. App.—Houston [14th Dist.] 1997, no pet.)).

      In making his ineffective assistance of counsel claim, appellant only focuses

on Welch’s assertion that, in order to preserve error, there must be a specific

objection to the absence of a psychological evaluation from the presentence

investigation report. Id. Appellant argues he received ineffective assistance of

counsel claim because his trial counsel failed to object to the absence of a

psychological evaluation. Appellant’s counsel could not have objected to the lack

                                          11
of a psychological evaluation in the presentence investigation report when there

was no presentence investigation report due to appellant’s previous waiver. See Ex

parte White, 160 S.W.3d at 53 (holding trial counsel is not ineffective for failure to

make futile objections).

      We hold that appellant has not met his burden to demonstrate ineffective

assistance of counsel by a preponderance of the evidence because he has not shown

that his trial counsel’s performance fell below an objective standard of

reasonableness. See Strickland, 466 U.S. at 687–88, 104 S. Ct. at 2064; Andrews,

159 S.W.3d at 101–02. Accordingly, we overrule appellant’s second issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Laura Carter Higley
                                              Justice

Panel consists of Justices Higley, Sharp, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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