                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NOS. 2-08-053-CR
                                    2-08-054-CR


RAYFIELD LEVEN BEECH                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE

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      FROM COUNTY CRIMINAL COURT NO. 8 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                  I. Introduction

      In a single issue, Appellant Rayfield Leven Beech appeals a condition of

his community supervision in his conviction for assault-bodily injury and raises

a single issue of ineffective assistance of counsel in the appeal of his conviction

for criminal mischief. We affirm.


      1
          … See Tex. R. App. P. 47.4.
                      II. Factual and Procedural History

      The State alleged (1) that, around December 15, 2006, Beech assaulted

complainant Bradley McClendon by striking him with a phone, kicking him with

his foot, or striking him with an unknown object and (2) that Beech caused

damage worth $50 or more but less than $500 to McClendon’s vehicle by

striking it with his hand.2 Beech pleaded not guilty to both charges, and the

cases were apparently tried together. 3

      The jury found Beech guilty of both charges.      The trial court entered

judgment in both causes on January 22, 2008, assessing punishment at one

year’s confinement and a $4,000 fine for the assault conviction and 180 days’

confinement and a $2,000 fine for the criminal mischief conviction. The trial

court then suspended imposition of both sentences and placed Beech on two

years’ community supervision in each case.

      The State filed a restitution motion in each case, alleging,

      THE DEFENDANT IN THIS CAUSE, AS A RESULT OF HIS
      PARTICIPATION AND INVOLVEMENT IN THE ACTS THAT
      RESULTED IN THE SUBJECT CHARGES, HAS CAUSED THE
      INJURED PARTY TO SUFFER LOSS AND DAMAGE TO [H]IS


      2
      … See Tex. Penal Code Ann. §§ 22.01(a)(1), 28.03(a)(1) (Vernon Supp.
2008).
      3
      … Beech did not request a reporter’s record of his trial. See Tex. R. App.
P. 37.3(c). However, the same jury foreman signed the verdict form in each
case.

                                          2
      PROPERTY IN THE AMOUNT OF $12,000. . . . IN ORDER FOR THE
      INJURED PARTY IN THIS CAUSE TO RECOVER HIS LOSSES AND
      BE MADE WHOLE, THE DEFENDANT SHOULD, AS PART OF THE
      JUDGEMENT AND SENTENCE, BE ORDERED TO PAY
      RESTITUTION TO THE INJURED PARTY AS FOLLOWS[.]

In each case, the State requested that Beech be made to pay to McClendon

$12,000 in restitution.

      The trial court’s docket sheet in each case states that a jury trial was held

on January 22, 2008; that the jury found Beech guilty; and that punishment

was assessed that day. The docket sheet in the assault-bodily injury case also

states that the amount of restitution owed is $12,000 “Due at $500 Per Mth

Beg 02/20/08 And Each Month Thereafter Til Paid in Full., Refer to Supplement

for Conditions of Probation . . . .“ No restitution is listed in the judgments,

dated January 22, or on the docket sheet for the criminal mischief case.

      The “Supplement/Amendment to Conditions of Community Supervision”

(“Supplement”) lists both offenses, is file-marked January 23, 2008—the same

file-mark date as the State’s motions for restitution—and contains the following

condition: “Restitution in the amount of $12,000.00 through Tarrant County

CSCD at the rate of $500.00 per month beginning the 20th day of Feb. 2008

and like payment on the 20th day of each month thereafter until full payment

is made.”    Beech’s signature is not on the Supplement.           These appeals

followed.

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                                 III. Discussion

      In his sole issue with regard to his assault-bodily injury conviction, Beech

complains that the docket sheet on his assault-bodily injury conviction and the

Supplement should be corrected to delete the restitution requirement. In his

sole issue with regard to his criminal mischief conviction, Beech argues that he

received ineffective assistance of counsel.

A. Community Supervision Conditions

      We review a challenge to a restitution order under an abuse of discretion

standard. Cartwright v. State, 605 S.W.2d 287, 288–89 (Tex. Crim. App.

[Panel Op.] 1980); Lemos v. State, 27 S.W.3d 42, 45 (Tex. App.—San Antonio

2000, pet. ref’d). The court abuses its discretion when it acts in an arbitrary

or unreasonable manner. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.

Crim. App. 1990) (op. on reh’g).

      Beech complains that the assault-bodily injury docket sheet and the

Supplement should be corrected to delete the requirement that restitution be

paid because the trial court did not inform him at the time of sentencing in open

court what amount of restitution he would be required to pay. Beech also

complains that the restitution amount was not determined until after his

sentencing because all of the other amounts on the docket sheet were printed

at the time the docket sheet was prepared and “$12,000“ was written in by



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hand. He points out that the judgment and sentence included no restitution

requirement, that the State did not file its motion for restitution until the day

after sentencing, and that his signature is not on the Supplement.

      Restitution to the victim is an exception to the rule that the trial court

may not order a defendant to make any payments as a term or condition of

community supervision.     Tex. Code Crim. Proc. Ann. art. 42.12, § 11(b)

(Vernon Supp. 2008). Under article 42.12 of the code of criminal procedure,

the trial court “may, at any time, during the period of community supervision

alter or modify the conditions,” and it may impose any reasonable condition that

is designed to protect or restore the victim. Id. § 11(a). Therefore, we overrule

this issue because the trial court had the discretion to determine the amount of

restitution after Beech’s sentencing and to modify the conditions of community

supervision to include it.4 See id.


      4
         … We note that Beech does not argue that he was not given the
opportunity to object to the modification and that he does not challenge the
legal or factual sufficiency of the evidence to support the amount of restitution
ordered. Cf. Rickels v. State, 108 S.W.3d 900, 902 (Tex. Crim. App. 2003)
(addressing appellant’s complaint on the merits when the conditions of his
community supervision were modified without a hearing and without giving him
the opportunity to object); Cartwright, 605 S.W.2d at 288 & n.1, 289 (abating
for an evidentiary hearing to determine a just amount of restitution when
appellant challenged probative evidence to support amount and did not provide
a reporter’s record but docket entries showed that evidence was not taken).
Furthermore, because Beech did not request a reporter’s record, we have no
way of determining whether restitution was discussed during the punishment
trial or whether the court announced restitution at the time of sentencing.

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B. Ineffective Assistance of Counsel

      Beech complains that he was harmed in his criminal mischief case

because his trial counsel failed to present a motion to quash the information.

He bases his complaint on a theory that the term “vehicle” as contained in the

information was too vague to give him notice of the charge against him

“[b]ecause a vehicle can be anything from an automobile, buggy, bicycle,

wagon, go-cart, or motorcycle.”

      1. Standard of Review

      To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different.   Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.

2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

      In evaluating the effectiveness of counsel under the first prong, we look

to the totality of the representation and the particular circumstances of each

case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance

was reasonable under all the circumstances and prevailing professional norms

                                        6
at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S.

Ct. at 2065. Review of counsel’s representation is highly deferential, and the

reviewing court indulges a strong presumption that counsel’s conduct fell within

a wide range of reasonable representation.        Salinas, 163 S.W.3d at 740;

Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on

direct appeal to fairly evaluate the merits of an ineffective assistance claim.

Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on

direct appeal is undeveloped and cannot adequately reflect the motives behind

trial counsel’s actions.”    Salinas, 163 S.W.3d at 740 (quoting Mallett, 65

S.W.3d at 63).        To overcome the presumption of reasonable professional

assistance, “any allegation of ineffectiveness must be firmly founded in the

record,   and   the    record   must   affirmatively   demonstrate    the     alleged

ineffectiveness.”      Id. (quoting Thompson, 9 S.W.3d at 813).             It is not

appropriate for an appellate court to simply infer ineffective assistance based

upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432

(Tex. Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial with

a reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other

words, appellant must show there is a reasonable probability that, but for

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

different.   Id. at 694, 104 S. Ct. at 2068.          A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Id., 104 S. Ct.

at 2068. The ultimate focus of our inquiry must be on the fundamental fairness

of the proceeding in which the result is being challenged. Id. at 697, 104 S.

Ct. at 2070.

       2. Analysis

       Beech filed a motion for new trial in his criminal mischief conviction, but

he did not allege ineffective assistance of counsel. Instead, he complained only

that the verdict was contrary to the law and evidence. Beech also failed to

request a reporter’s record of his trial, thus preventing this court from

evaluating   the     totality   of   the   representation,   this   case’s   particular

circumstances, and the motives behind counsel’s failure to file the motion to

quash. See Thompson, 9 S.W.3d at 813–14; see also Salinas, 163 S.W.3d at

740.

       However, even if Beech had requested a reporter’s record or requested

a hearing on his ineffective assistance claim, he would still be unable to prevail

on this issue because to establish ineffective assistance of counsel for failure

to file a motion with the court, he must demonstrate that he would have

succeeded on the motion. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim.

                                            8
App. 1998); Keller v. State, 125 S.W.3d 600, 608 (Tex. App.—Houston [1st

Dist.] 2003), pet. dism’d, improvidently granted, 146 S.W.3d 677 (Tex. Crim.

App. 2004), cert. denied, 544 U.S. 906 (2005). Counsel is not required to

engage in the filing of futile motions. See, e.g., Mooney v. State, 817 S.W.2d

693, 698 (Tex. Crim. App. 1991) (failure to move to quash venirepanel not

deficient when there was no evidence that the venire, as a whole, was biased

against appellant and the record demonstrated that the panel was not tainted);

Hollis v. State, 219 S.W.3d 446, 456 (Tex. App.—Austin 2007, no pet.)

(failure to file a motion to suppress is not per se ineffective assistance of

counsel).

      A motion to quash should be granted only when the language concerning

the defendant’s conduct is so vague or indefinite as to deny him effective

notice of the acts he allegedly committed. DeVaughn v. State, 749 S.W.2d 62,

67 (Tex. Crim. App. 1988); State v. Goodman, 221 S.W.3d 116, 120 (Tex.

App.—Fort Worth 2006, no pet.). Beech’s criminal mischief information states,

in pertinent part, that Beech

      on or about the 15th day of December 2006, did THEN AND
      THERE INTENTIONALLY OR KNOWINGLY DAMAGE OR DESTROY
      TANGIBLE PROPERTY, TO-WIT: A VEHICLE, BY STRIKING SAID
      VEHICLE WITH HIS HAND, WITHOUT THE EFFECTIVE CONSENT
      OF BRADLEY MCCLENDON, THE OWNER OF SAID PROPERTY,
      AND DID THEREBY CAUSE PECUNIARY LOSS OF $50 OR MORE,
      BUT LESS THAN $500 TO THE SAID OWNER. [Emphasis added.]

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      Although Beech claims that “vehicle” is too ambiguous, given that

“vehicle” here is stated with reference to “Bradley McClendon, the owner of

said property,” the information was sufficient to apprise Beech of what

behavior had brought about the criminal mischief information. See Wood v.

State, 632 S.W.2d 734, 736–37 (Tex. Crim. App. 1982) (holding indictment

charging defendant with receiving stolen property consisting of “one truck

tractor” and “one automobile” sufficiently descriptive); Gaines v. State, 501

S.W.2d 315, 317 (Tex. Crim. App. 1973) (holding indictment alleging theft of

“one automobile of the value of over $50.00“ sufficient to provide required

notice); Caro v. State, 771 S.W.2d 610, 615–16 (Tex. App.—Dallas 1989, no

pet.) (holding indictment alleging name of vehicle’s owner sufficient).

      Furthermore, even if the language used in this information had been

overly vague, a successful motion to quash it would have left the State free to

amend or seek another one. See Gumpert v. State, 48 S.W.3d 450, 456 (Tex.

App.—Texarkana 2001, pet. ref’d), cert. denied, 535 U.S. 1064 (2002).

Therefore, Beech has failed to show that his counsel’s representation fell below

the standard of prevailing professional norms or that there is a reasonable

probability that the result of the trial would have been different if counsel had

filed a motion to quash the information, and we overrule his sole issue in his

criminal mischief appeal. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

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                             IV. Conclusion

     Having overruled both of Beech’s issues, we affirm the trial court’s

judgments.

                                       PER CURIAM

PANEL: MCCOY, DAUPHINOT, AND GARDNER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 12, 2009




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