                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-09-00187-CR
        ______________________________


  MARKEASE DONTRELL MCCARTY, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




    On Appeal from the 8th Judicial District Court
                Delta County, Texas
                Trial Court No. 6888




     Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Carter
                                       MEMORANDUM OPINION

        Markease Dontrell McCarty pled guilty to three counts1 of aggravated sexual assault of a

child and was placed on deferred adjudication community supervision. Shortly thereafter, the

State moved to proceed with adjudication of guilt, arguing that McCarty violated the following

conditions of his community supervision by failing to: avoid persons or places of disreputable or

harmful character such as Kevin Ty Lewis, currently being charged with a crime; report in person

not less than once per month; actively seek, obtain, and maintain employment; pay a sex offender

supervisory fee, assessed fines, and other costs in accordance with the court’s order; perform

community service work in accordance with the court’s order; ―to keep the court key at all times

and present it to the CSO when reporting‖; and by leaving his county of residence without written

permission from his community supervision officer.2               After testimony from several community

supervision officers verifying the State’s allegations, the trial judge found McCarty had violated

them, adjudicated him guilty of all counts of aggravated sexual assault and, after a separate

punishment hearing, sentenced him to life imprisonment.

        McCarty appeals the trial court’s judgment on the basis that it failed to remove Lewis, a

potential witness, from the courtroom when it invoked the rule. McCarty also alleges that his


1
 In a single brief alleging the same points of error, McCarty appeals from three convictions for aggravated sexual
assault of a child, cause numbers 06-09-00187-CR through 06-09-00189-CR.
2
 The State abandoned allegations that McCarty failed to register as a sex offender, delivered cocaine to certain
persons, was found with an automatic weapon, and failed to provide notice of change of address. The trial court did
not find that McCarty failed to pay a community supervision fee.

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counsel rendered ineffective assistance for failing to present any evidence in his favor. We will

affirm the court’s judgment.

I.     Failure to Remove A Non-Witness from the Courtroom Was Not Error

       The punishment hearing was conducted three days after the adjudication hearing. At the

punishment hearing, the ―Rule‖ was invoked. TEX. R. EVID. 614. The trial court swore in the

witnesses, instructed them to remain outside the courtroom, and not discuss their testimony with

other witnesses.

       Several other criminal cases were set for that day, and the prisoners involved were seated in

the courtroom waiting for their hearing; one of the prisoners in the courtroom was Lewis.        After

the State had rested, a witness testifying in McCarty’s favor acknowledged Lewis’ presence in the

courtroom. Counsel objected to Lewis’ presence, asked that he be removed ―because I feel like

it’s an intimidation,‖ and stated, ―I have had interviews with clients that are deathly afraid of this

man.‖ Contrary to McCarty’s assertion, the record does not reflect that Lewis was ever identified

as a witness or a potential witness in his case. Further, the issue presented to the trial court is not

the same argument as on appeal.         McCarty requested Lewis be removed because he might

intimidate other witnesses, not that Rule 614 had been violated. We find McCarty’s first

contention to be without merit. It is overruled.




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II.    McCarty Cannot Meet His Burden to Demonstrate Counsel Was Ineffective

       McCarty also argues that counsel was ineffective for failing to call any witnesses or present

any evidence in his favor during the guilt/innocence phase. We begin our analysis with the rule

that any allegation of ineffectiveness of counsel must be firmly founded in the record.

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999); Wallace v. State, 75 S.W.3d 576, 589 (Tex. App.—Texarkana

2002), aff’d, 106 S.W.3d 103 (Tex. Crim. App. 2003). From the record received by this Court,

which does not include counsel’s reasons for the alleged failure to present evidence, McCarty

bears the burden of proving that counsel was ineffective by a preponderance of the evidence.

Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 813; Cannon v. State, 668 S.W.2d 401,

403 (Tex. Crim. App. 1984).

       We apply the two-pronged Strickland test handed down by the United States Supreme

Court to determine whether McCarty received ineffective assistance of counsel. See Strickland v.

Washington, 466 U.S. 668 (1984). Failure to satisfy either prong of the Strickland test is fatal.

Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006). Thus, we need not

examine both Strickland prongs if one cannot be met. Strickland, 466 U.S. at 697.

       First, McCarty must show that counsel’s performance fell below an objective standard of

reasonableness in light of prevailing professional norms. Id. at 687–88. There is a strong

presumption that counsel’s conduct fell within the wide range of reasonable professional



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assistance and that the challenged action could be considered sound trial strategy. Id. at 689;

Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004); Tong v. State, 25 S.W.3d 707, 712

(Tex. Crim. App. 2000). Therefore, we will not second-guess the strategy of McCarty’s counsel

at trial through hindsight. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Hall v.

State, 161 S.W.3d 142, 152 (Tex. App.—Texarkana 2005, pet. ref’d).

       When the claim of ineffective assistance is based on counsel’s failure to call witnesses, the

appellant must show that such witnesses were available to testify and that appellant would have

benefitted from their testimony. White, 160 S.W.3d at 52 (citing King v. State, 649 S.W.2d 42, 44

(Tex. Crim. App. 1983)). In this case, since the record is silent as to why counsel failed to call any

witnesses or present any evidence in McCarty’s favor, we assume it was due to any strategic

motivation that can be imagined, including the possibility that no favorable evidence could be

presented. Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); Garcia v. State, 57

S.W.3d 436, 441 (Tex. Crim. App. 2001); Fox v. State, 175 S.W.3d 475, 485–86 (Tex.

App.—Texarkana 2005, pet. ref’d).

       The second Strickland prejudice prong requires a showing that but for counsel’s

unprofessional error, there is a reasonable probability that the result of the proceeding would have

been different. Strickland, 466 U.S. at 687–88.        McCarty addresses this issue with a single

conclusory statement that ―[b]y not presenting any evidence, counsel’s representation so

undermined the proper functioning of the adversarial process that the trial cannot be relied on



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having produced a just result.‖ Because McCarty fails to demonstrate the existence of favorable

evidence which would rebut each condition of community supervision allegedly violated, he

cannot meet his burden to prove the second Strickland prong.

III.   Conclusion

       We affirm the trial court’s judgment.




                                                   Jack Carter
                                                   Justice

Date Submitted:       September 28, 2010
Date Decided:         September 29, 2010

Do Not Publish




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