                                       NO. 07-10-0307-CR

                                 IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                              PANEL E

                                           MAY 24, 2011


                                   CARLOS ADRIAN ADAME,

                                                                      Appellant
                                                   v.

                                     THE STATE OF TEXAS,

                                                                      Appellee
                             _____________________________

            FROM THE 31ST DISTRICT COURT OF LIPSCOMB COUNTY;

            NO. 1166; HONORABLE STEVEN RAY EMMERT, PRESIDING


                                     Memorandum Opinion


Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.1

      Appellant Carlos Adrian Adame pled guilty in 2007 to the offense of aggravated

assault and was sentenced to ten years imprisonment. That sentence was probated for

five years. In 2009, the State sought to revoke appellant’s probation. After a hearing,

the trial court found that appellant had violated his probation and sentenced him to ten

years. Appellant appealed, contending 1) he received ineffective assistance of counsel

during the probation revocation proceeding, 2) the trial court erred in ruling that any
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       John T. Boyd, Senior Justice retired, sitting by assignment.
inquiries into the tendencies of the trial court were irrelevant, 3) the trial court erred in

sua sponte stating that various types of evidence would be inadmissible, 4) he was

denied due process because the trial court failed to convene a separate hearing on

punishment after granting the motion to revoke, and 5) the cumulative impact of the

errors requires reversal. We affirm the judgment.

       Ineffective Assistance of Counsel

       One claiming that his counsel provided ineffective assistance must prove both a

deficiency in performance and prejudice arising from that deficiency; prejudice is

established by illustrating that but for the deficiency, there is a reasonable probability

the result would have differed. Perez v. State, 310 S.W.3d 890, 892-93 (Tex. Crim.

App. 2010). We overrule the claims of ineffective assistance asserted here for the

following reasons.

       First, with regard to the allegations about the extent of counsel’s investigation

into potential avenues of defense, appellant simply concluded that the deficiencies

caused him prejudice. He did not explain why. Had the State appeared at the hearing

on the motion to revoke and done nothing other than say appellant violated the

conditions of his probation, appellant would have no doubt argued that it failed to carry

its burden of proof, and he would have been correct. The State does not meet its

burden of proof simply by saying that appellant did X, Y, or Z. The same is true of an

appellant who attacks the effectiveness of his attorney.        He has to show why the

supposed errors harmed him, and merely saying that what they did is not enough.

       Second, and to the extent that the appellant questions his counsel’s supposed

failure to investigate the “reputation and tendencies of the presiding judge in revocation

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hearings,” we find no evidence of record that such occurred. Curtis Brancheau (the

attorney appointed to represent appellant at the revocation hearing) was never asked if

he knew about the trial judge’s supposed reputation or investigated that matter.

Instead, appellant merely asked whether he had spoken with a “Mr. Holmes” about

“what usually happens in probation revocations.” Brancheau did not answer due to the

court sustaining the State’s objection founded on relevance. Thus, we do not know if

Brancheau investigated the topic or not. Nor do we know if Brancheau had already

developed his own beliefs about the trial court’s sentencing traits. If he had, then there

would have been little need to investigate, assuming, of course, that knowing of the trial

court’s predelictions was elemental to being an effective advocate.

      Third, and to the extent that appellant complains of his counsel’s supposed

failure to 1) investigate the existence of or offer any mitigating evidence and 2) present

argument on his behalf at the probation revocation hearing, appellant neglected to

illustrate the tenor of the mitigating evidence or argument that should have been

provided. This is of import because implicit in establishing that counsel was ineffective

due to omission is describing what should have been done and how it would have

benefitted him. This is true with regard to purported witnesses who were not called.

Perez v. State, 310 S.W.3d at 894 (stating that to establish that counsel was fatally

deficient because he did not investigate and call witnesses obligates the complainant to

show not only that witnesses were available to testify but also that their testimony would

have benefitted the defendant); see also Rivera v. State, 317 S.W.3d 480, 483 (Tex.

App. –Amarillo 2010, no pet.) (stating that to show how particular witnesses would have

benefitted the accused, one must develop the nature of the testimony which should

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have been tendered). And, it logically follows that the same is true viz the supposed

failure to proffer certain arguments; after all, the court should be informed of what those

arguments are before it can assess whether a reasonable attorney was obligated to

utter them. Given appellant’s failure to do that required of him, we can only conclude

that his efforts fell short of meeting his burden of proof.

       Nonetheless, we note that Brancheau did elicit testimony at the revocation

hearing about appellant attending a number of classes, including those involving stress

management. So too was there evidence that counsel wrote appellant at least two

letters, met with him in jail twice, and spoke with appellant’s wife on multiple occasions

about the revocation proceeding.          Brancheau also asked appellant to memorialize for

him the information and circumstances appellant thought would assist in his defense;

yet, appellant did not do that. Counsel also objected to the State amending the motion

to revoke just prior to the hearing, made a number of objections to evidence at the

revocation hearing, and sought to voir dire witnesses at the same hearing.           Given

appellant’s rejection of the State’s plea offer of seven years and the State’s refusal to

proffer any others, counsel also testified that he felt his best strategy was to require the

State to fulfill its burden to prove the allegations in its motion to revoke. This was

considered to be a viable strategy because the pertinent witnesses were in El Paso, a

site far from where the hearing was to be held, and would cause the State to make a

bettter plea offer.2 Thus, counsel did not merely sit idle as appellant would want us to

believe.



       2
        Appellant’s probation had been transferred to El Paso.

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       Fourth, as for the allegation that counsel was deficient in failing to explain that

appellant could receive the maximum prison sentence if no plea bargain was reached,

appellant never testified that he would have accepted the seven-year offer but for the

omission. Nor did he testify that he would have modified his previous views toward

accepting only a plea offer of two or three years. Moreover, appellant told the trial judge

and prosecutor that his complaint was not with the length of his sentence, but rather

with his attorney’s conduct. Given this comment and absence of pertinent evidence, we

are hard pressed to conclude that the omission had any prejudicial effect.

       Admission of Evidence Regarding Tendencies of Trial Judge

       Next, it is asserted that the trial court erred “in ruling that appellant’s questions

regarding trial counsel’s investigation of tendencies of [the] trial judge was not relevant,

thereby preventing [him] from properly presenting testimony that was necessary . . . .”

This circumstance occurred during the hearing on the motion for new trial and after

Brancheau was asked whether he “discussed with Mr. Holmes what usually happens in

probation revocations[.]”3 The State objected to the question on the basis of relevance.

In response to that objection, appellant argued that “it shows whether or not Mr.

Brancheau was prepared to --- to litigate in behalf of this Defendant.” He added that

“[o]ne should not go before a Court without knowing what the tendency of the Court is”

and “this Court, in particular almost always revokes and almost always maxes out the

Defendant.” We overrule the issue for several reasons.

       First, the ground underlying appellant’s complaint on appeal differs from that

asserted below. That is, appellant argued before us that the trial court should have

       3
       Appellant fails to cite us to anything of record indicating who this “Mr. Holmes” was.

                                                   5
allowed appellant to generally develop information about the tendencies and reputation

of the trial court viz motions to revoke. Before the trial court, however, he asserted that

he was entitled to ask the question to determine the extent of Brancheau’s preparation

for trial by assessing whether Brancheau personally knew of the trial court’s tendencies

or reputation. These two arguments have differing focal points. The former concerns

the ability to garner evidence about actual propensities or bias of a trial judge while the

latter involves what Brancheau may or may not have known about a trial judge’s bias or

reputation irrespective of its accuracy.     And, it was appellant’s supposed ability to

develop what Brancheau personally knew about the trial judge (and how that affected, if

it did, his advice) that formed the basis of the complaint below, not his supposed ability

to garner actual evidence of the judge’s propensities.        So, the grounds underlying

appellant’s complaint below and here do not comport, and, therefore, the contention

proffered at bar went unpreserved. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.

Crim. App. 2004) (stating that the grounds underlying an objection uttered below must

comport with those raised on appeal).

       Second, the State objected to the relevance of a question asking whether

Brancheau spoke with Holmes about a particular topic. It did not object to appellant’s

ability to illustrate that trial counsel failed to adequately prepare for trial by supposedly

being ignorant of the judge’s alleged characteristics. Moreover, the court sustained the

particular objection uttered. It did not bar appellant from generally delving into 1) what

Brancheau may or may not have thought or known about the trial court, and 2) how that

information, or lack thereof, affected the nature of the advice imparted to his client.

Thus, we see no harm or prejudice arising from the decision irrespective of its accuracy.

                                             6
Appellant remained free to develop what his attorney may or may not have thought

about the trial judge and the impact, if any, those beliefs may have had on his advice.

      Sua Sponte Objection to Admission of Evidence

      Appellant also suggests that the trial court erred when it sua sponte ruled that

certain mitigating evidence was inadmissible. The evidence in question encompassed

potential letters from friends and family as well as comments made to appellant by his

wife concerning her actions. We overrule the issue because appellant failed to cite

authority or proffer argument illustrating that such evidence was admissible. In other

words, the issue was inadequately briefed, and, therefore, waived. Rhoades v. State,

934 S.W.2d 113, 119 (Tex. Crim. App. 1996) (stating that an issue is waived when

supported by neither citation to authority or substantive argument).

      Punishment Hearing

       Next, appellant contends the trial court erred in denying him a separate

punishment hearing after granting the State’s motion to revoke. We overrule the issue

because it was not raised below either through contemporaneous objection or motion

for new trial. The failure to so raise the matter waived the complaint for appellate

purposes. Harris v. State, 160 S.W.3d 621, 626-27 (Tex. App.–Waco 2005, pet. dism’d)

(so holding); Cochran v. State, 78 S.W.3d 20, 26 (Tex. App.–Tyler 2002, no pet.)

(holding the same).

      Cumulative Impact

      Having found no reversible error with respect to appellant’s other issues, there is

also no cumulative error requiring reversal. We overrule appellant’s last issue.



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      Accordingly, the trial court’s judgment is affirmed.



                                                Per Curiam

Do not publish.




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