                                  NO. 07-02-0203-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                   AUGUST 25, 2003

                         ______________________________


                            CINDY MARRIOTT, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

               FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                  NO. B13986-0102; HONORABLE ED SELF, JUDGE

                         _______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.


                               MEMORANDUM OPINION


      Appellant Cindy Marriott appeals from a judgment revoking her community

supervision. She judicially admitted some of the State’s alleged violations were true, but,

in two issues: (1) contends the court abused its discretion by revoking her community

supervision instead of modifying it to require her referral to a substance abuse felony

program facility (SAFPF); and (2) asserts that her trial counsel was ineffective in
presenting appellant’s need and suitability for treatment in a special needs substance

abuse felony program. We affirm the judgment of the trial court.


       Pursuant to a plea agreement, appellant was adjudged guilty in 2001 of the felony

offense of credit card abuse. She was sentenced to two years confinement, suspended

for five years of community supervision. The State filed a motion to revoke her community

supervision in February 2002, based on eight alleged violations of its conditions. At the

hearing on the State’s motion, appellant pled true to five of the eight alleged violations.

Following testimony, the court found appellant had also violated the three other conditions

of community supervision. The court revoked appellant’s community supervision and

imposed the original sentence of two years confinement in a State Jail Facility of the Texas

Department of Criminal Justice (TDCJ).


       Appellate review of a revocation order is limited to determining whether the trial

court abused its discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984);

Jackson v. State, 645 S.W.2d 303, 305 (Tex.Crim.App. 1983). A trial court abuses its

discretion when its action or decision is not within the zone of reasonable disagreement.

Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh’g). When

the standard of review is abuse of discretion and the record contains some evidence to

support the decision made by the trial court, we must affirm the trial court’s judgment. See

Brumbalow v. State, 933 S.W.2d 298, 300 (Tex.App.–Waco 1996, pet. ref’d). In a

proceeding to revoke probation, the trial judge is the sole trier of facts, the credibility of the

witnesses and the weight to be given to particular testimony. Naquin v. State, 607 S.W.2d


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583, 586 (Tex.Crim.App. 1980). A defendant’s plea of true, standing alone, is sufficient

to support the revocation of probation.           Moses v. State, 590 S.W.2d 469, 470

(Tex.Crim.App. 1979).


       Appellant acknowledges that her plea of true to one violation of the conditions of

her community supervision is sufficient to support the court’s order revoking her community

supervision. She contends, though, that the court abused its discretion by revoking her

community supervision rather than modifying it to require intensive substance abuse

counseling.   Appellant argues that she met the criteria established by statute and

regulations for admission to an SAFPF, but was denied continued community supervision

in a treatment program because she refused to admit she had a problem with drugs.

Appellant then posits that since neither the desire to participate in an SAFPF nor a belief

that one needs treatment are required under the statutory or regulatory criteria, the trial

court’s decision to revoke her community supervision “apparently” relied on arbitrary and

capricious grounds not supported by law. We cannot agree with appellant’s contention.


       After a hearing on a violation of community supervision, the trial court may continue

or modify community supervision and impose a condition that the defendant be placed in

a substance abuse felony punishment program. Tex. Crim. Proc. Code Ann. art. 42.12, §

22(a)(4) (Vernon Supp. 2003). The court must make certain affirmative findings, including

a finding that the defendant is a suitable candidate for treatment. Article 42.12, § 22(a)(4).




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       Appellant cites Ice v. State, 914 S.W.2d 694 (Tex.App.–Ft. Worth 1996, no pet.),

in which the defendant appealed the trial court’s judgment requiring him to participate in

an SAFPF. While Ice may stand for the proposition that a defendant’s desire not to

participate in an SAFPF does not preclude its imposition as a condition of community

supervision, it does not support a contention that the court must honor a defendant’s

expressed desire to participate in such a program.


       There is ample record evidence on which the court could have determined that

appellant was not a suitable candidate. Appellant’s equivocal testimony concerning her

drug problem and her desire to enter an SAFPF, her excuses for her drug use, and her

failures to comply with the other terms of her community supervision all reasonably could

have led to such a determination by the court. Appellant’s testimony fell considerably short

of acknowledging a need for drug treatment.             She emphasizes that such an

acknowledgment is not a requirement for referral to an SAFPF, but she cites no authority

suggesting that the court may not consider a defendant’s attitude toward treatment in

reaching a decision whether to make such a referral.


       Further, there is reason to doubt that appellant meets the eligibility criteria

established by TDCJ for persons to be placed in an SAFPF. One of the criteria is that the

person be physically and mentally capable of uninterrupted participation in a rigorous,

stressful and confrontational therapeutic community program. 37 Tex. Admin. Code §

159.1(b) (2003). At the revocation hearing appellant complained of being in constant pain

due to problems with her jaw and teeth. When asked why she had not completed her


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community service, she explained that she had been unable to work due to a problem with

her neck, possibly a pinched nerve, which caused her arms to go numb when she

attempted to work. Sufficient evidence was presented to raise questions as to whether

appellant would be physically able to meet the criteria for placement in an SAFPF.


       Moreover, appellant’s arguments concerning the trial court’s apparent reasons for

its decision are speculative. She suggests that the court’s questioning of her indicates that

the court applied an improper rationale. Presented with evidence sufficient to find a

violation of the conditions of community supervision, the court had discretion to determine

whether appellant’s community supervision should be revoked or whether she should be

continued on community supervision and sent to an SAFPF. Tex. Crim. Proc. Code Ann.

art. 42.12, § 22(a)(4).    The court expressed no findings that support appellant’s

speculations, and we decline to join in them.


       The trial court did not abuse its discretion in revoking appellant’s community

supervision. Her first issue is overruled.


       Appellant’s second issue contends trial counsel was ineffective in presenting to the

court appellant’s need and suitability for treatment in a substance abuse felony program

thereby causing the trial court to revoke probation. The standard for reviewing an

ineffective assistance of counsel claim was established in Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (adopted by the Texas Court of Criminal

Appeals in Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986)).               Under



                                             5
Strickland, appellant must first demonstrate that her trial counsel’s performance was

deficient. Secondly, she must show that her counsel’s deficient performance was so

serious that it prejudiced her defense, rendering the trial unfair, and the verdict suspect.

Strickland, 466 U.S. at 687; Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed.

2d 180 (1993). In other words, appellant must prove by a preponderance of the evidence

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

under prevailing professional norms and that this deficient performance rendered the result

of the proceeding unreliable. Strickland, 466 U.S. at 687.


       Appellate review of defense counsel’s representation is highly deferential and

presumes that counsel’s actions fell within the wide range of reasonable and professional

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

903 S.W.2d 21, 33 (Tex.Crim.App. 1995).           The analysis of effective assistance is

undertaken in light of the “totality of the representation” rather than isolated acts or

omissions of trial counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App. 1986).

The fact that another attorney may have pursued a different tactic at trial is insufficient to

prove a claim of ineffective assistance. Miniel v. State, 831 S.W.2d 310, 325

(Tex.Crim.App. 1992).


       Appellant argues trial counsel was ineffective because he failed to recognize the

impact of appellant’s bi-polar illness on the attorney-client relationship and failed to

request a continuance in order to better prepare for the hearing. Citing Chance v. State,

528 S.W.2d 605 (Tex.Crim.App. 1975), appellant asserts that a continuance would have


                                              6
allowed trial counsel to develop a better working relationship with his client, understand

his client’s mental illness and provide more time for his client to adjust to his trial strategy.

In Chance, the Court of Criminal Appeals reversed an order revoking probation because

the trial court denied a continuance requested by the defendant’s counsel. Counsel

testified that his client was not able to adequately assist him because of her physical and

mental maladies, and the trial court made an express written finding of fact that her ability

to assist her counsel was greatly diminished. While the court’s opinion in Chance might

have provided appellant’s counsel with support for a continuance, the opinion does not

establish an objective standard of prevailing professional norms by which to criticize

counsel’s decision not to seek a continuance in this case. Too, the evidence in the record

before us falls considerably short of demonstrating that appellant was unable to assist her

counsel at the hearing.


       Appellant contends trial counsel should have utilized the testimony of an expert in

the field of dual-diagnosis to demonstrate how appellant’s bi-polar illness was the cause

of her failure to comply with the terms and conditions of her community supervision.

Appellant also contends her counsel should have investigated dual-diagnosis treatment

facilities and presented information on such facilities to the court.


       The court was informed that appellant was being treated for a bi-polar condition at

the beginning of the revocation hearing. Trial counsel informed the court that he believed

appellant was competent to stand trial, and that she understood the consequences of the

revocation hearing. Appellant’s testimony at the hearing was coherent and responsive to


                                               7
questions asked by her attorney, the State, and the court. Appellant’s counsel presented

to the court, through appellant’s testimony, her desire to be placed in an SAFPF, and her

willingness to comply with the demands of such a program.




       Appellant is critical of several other aspects of her trial counsel’s representation of

her. She cites no authority, though, to support a contention that counsel is required to

explore or inform the court of every possible option for treatment of a client. She presents

neither a persuasive argument nor authority to establish that her counsel’s performance

fell below an objective standard of reasonableness. None of the evidence presented at

the hearing on appellant’s motion for new trial warrants that conclusion.


       Appellant having failed to establish the first element of her claim of ineffective

assistance of counsel, we overrule her second issue. Accordingly, the judgment of the trial

court is affirmed.


                                                  James T. Campbell
                                                      Justice




Do not publish.




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