Affirmed and Memorandum Opinion filed April 21, 2020.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-18-00884-CR

                     GERALD ALLEN SPIKES, Appellant

                                        V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 179th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1517921

                         MEMORANDUM OPINION

      Appellant Gerald Allen Spikes appeals his conviction for aggravated assault
with a deadly weapon. See Tex. Penal Code Ann. § 22.02(a)(2). Appellant initially
pleaded guilty to aggravated assault with a deadly weapon, adjudication of guilt was
deferred, and appellant was placed on deferred adjudication community supervision
for six years. Before appellant completed the six-year community supervision, the
State moved to adjudicate appellant’s guilt on several grounds that he violated his
community supervision including that appellant committed another offense. After a
hearing on the motion to adjudicate the trial court found that appellant violated the
conditions of his community supervision, adjudicated appellant guilty, and assessed
punishment at 18 years in prison. In a single issue on appeal, appellant argues that
he received ineffective assistance from his trial counsel when counsel failed to object
to allegedly inadmissible evidence. Concluding that appellant has not shown his
counsel rendered ineffective assistance or that he suffered prejudice from any
presumed ineffective assistance, we affirm the trial court’s judgment.

                                   BACKGROUND

      Appellant pleaded guilty to the offense of aggravated assault with a deadly
weapon and received six years deferred adjudication community supervision. One
of the conditions of appellant’s community supervision was that he commit no
offense against the laws of Texas or any other state or of the United States.
Approximately one year later the State filed a motion to adjudicate appellant’s guilt
alleging that appellant violated the conditions of his community supervision by (1)
transporting, possessing, receiving, or purchasing a firearm, and (2) failing to pay
certain fees.

      The trial court held a hearing on the State’s motion to adjudicate. Appellant
pleaded true to an enhancement paragraph, which subjected him to a punishment
range of five to 99 years or life in prison. See Tex. Penal Code § 12.42(b). At the
hearing appellant stated that he understood the range of punishment.

      The trial court took judicial notice of appellant’s community supervision file,
which reflected that appellant received six years deferred adjudication community
supervision for aggravated assault. Shiarnice Taylor, appellant’s community
supervision officer, explained the conditions of appellant’s community supervision
to him. Appellant signed documentation that confirmed he understood the terms and
conditions of his community supervision. Taylor testified that appellant violated the
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conditions of his community supervision by committing another offense and failing
to pay fees associated with his community supervision.

      Houston Police Officer Jose Gomez-Canada testified that he was dispatched
to a disturbance at a location called Pacesetter, which is an organization that provides
temporary employment to day workers. The dispatch involved a possible assault at
3:00 in the morning, at which time Pacesetter was closed. Pacesetter posted signs
warning that no trespassing or weapons were allowed.

      After Gomez-Canada and his partner Officer Martinez completed their
investigation of the disturbance they were flagged down by the complainant Mark
Brown, owner of Pacesetter. Brown asked the officers to require the individuals to
leave because Pacesetter was not yet open. Pacesetter had posted “No Trespassing”
signs. Pacesetter also had posted signs notifying that no weapons were allowed on
the premises. Brown also told the officers that he was going to have to fire appellant
because appellant had been caught at a local sports stadium carrying a gun. Brown
told the officers that appellant may have a gun in the backpack he was carrying.
Gomez-Canada testified that he had met Brown on several occasions, and he
believed Brown was credible. Gomez-Canada found appellant to be suspicious and
detained appellant because he thought appellant had a gun in his backpack.

      The officers told the men gathered at Pacesetter that they had to leave. Gomez-
Canada saw appellant going back toward the building rather than leaving the
premises. Appellant appeared “extremely nervous” and was moving his arms
around. Gomez-Canada observed a small bag of synthetic marijuana in appellant’s
hand. The officers stopped appellant and appellant said he had no weapons, holding
his hands out. Upon seeing the synthetic marijuana Gomez-Canada grabbed
appellant’s backpack while Martinez handcuffed him.

      Through appellant’s mother’s testimony it was established that appellant had
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twice pleaded guilty to aggravated assault with a deadly weapon, once in 2014, and
again in 2016. Appellant received community supervision in 2014. Appellant’s
community supervision was revoked, and he was sentenced to two years’
confinement in prison. While on parole for the 2014 offense appellant committed
the underlying offense in this case.

      After closing arguments, the trial court had the following exchange with
appellant:

      THE COURT: And there are allegations that you’ve heard in court
      today that you violated your probation in several ways but the most
      obvious way is that you were in possession of a firearm. Did you hear
      that?
      THE DEFENDANT: Yes, sir.
      THE COURT: Were you in possession of a firearm?
      THE DEFENDANT: Yes, sir, I was.

The trial court subsequently adjudicated appellant guilty and assessed punishment at
18 years in prison.

                                       ANALYSIS

      In a single issue, appellant argues he received ineffective assistance of counsel
at his adjudication hearing where counsel failed to object to the introduction of
allegedly inadmissible evidence and failed to preserve error. We examine claims of
ineffective assistance of counsel under the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984). Under Strickland, appellant must establish that
his trial counsel’s representation was deficient, and that the deficient performance
was so serious that it deprived him of a fair trial. Id. at 687. Counsel’s representation
is deficient if it falls below an objective standard of reasonableness. Id. at 688. This
deficiency will only deprive appellant of a fair trial when counsel’s performance
prejudices appellant’s defense. Id. at 691–92. To demonstrate prejudice, appellant

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must show a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Id. at 694. Failure to make the
required showing of either deficient performance or sufficient prejudice defeats the
claim of ineffectiveness. Id. at 697.

      Our review of defense counsel’s performance is highly deferential, beginning
with the strong presumption that the attorney’s actions were reasonably professional
and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768,
771 (Tex. Crim. App. 1994). When the record is silent as to trial counsel’s strategy,
we will not conclude that appellant received ineffective assistance unless the
challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005). Rarely will the trial record contain sufficient information to permit a
reviewing court to fairly evaluate the merits of such a serious allegation. See Bone
v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In the majority of cases, the
appellant is unable to meet the first prong of the Strickland test because the record
on direct appeal is underdeveloped and does not adequately reflect the alleged
failings of trial counsel. See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App.
2007).

      A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel. See
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). “[I]solated
instances in the record reflecting errors of omission or commission do not render
counsel’s performance ineffective, nor can ineffective assistance of counsel be
established by isolating one portion of trial counsel’s performance for examination.”
McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992), overruled on
other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994). “It is not

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sufficient that appellant show, with the benefit of hindsight, that his counsel’s actions
or omissions during trial were merely of questionable competence.” Mata, 226
S.W.3d at 430. Rather, to establish that the attorney’s acts or omissions were outside
the range of professionally competent assistance, appellant must show that counsel’s
errors were so serious that he was not functioning as counsel. See Patrick v. State,
906 S.W.2d 481, 495 (Tex. Crim. App. 1995).

      In this case appellant did not file a motion for new trial alleging ineffective
assistance of counsel or develop a record of counsel’s reasons for his actions.
Therefore, in addressing this issue, the record is silent as to counsel’s strategy.

I.    Trial counsel did not render ineffective assistance by failing to object to
      alleged hearsay and speculation during the adjudication hearing.
      Appellant first argues that defense counsel failed to object to hearsay
statements of Brown when Brown told the officers that appellant possibly had a gun
in his backpack. Appellant further complains of counsel’s failure to object to
speculation when Gomez-Canada testified that he observed synthetic marijuana in
appellant’s hand. Appellant argues that by failing to object to the above statements
counsel’s performance was “undeniably deficient.”

      These failures to object to potentially inadmissible testimony are not
sufficient, in themselves, to constitute deficient performance. See Thompson v. State,
9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (holding presumption of strategy not
rebutted when record was “silent as to why appellant’s trial counsel failed to object
to the State’s persistent attempts to elicit inadmissible hearsay”). Plausible
professional reasons exist for not objecting to hearsay. There may have been
strategic reasons for not objecting in these instances, but we may not speculate on
counsel’s motives in the face of a silent record. See id.; see also Gamble v. State,
916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (declining to

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speculate on various failures to object to admission of evidence). We cannot say that
defense counsel’s conduct was “so outrageous that no competent attorney would
have engaged in it.” See Goodspeed, 187 S.W.3d at 392. Therefore, we conclude
that appellant has not satisfied the first prong of Strickland on his ineffective-
assistance complaint related to the failure to object to allegedly inadmissible
evidence.

II.   Trial counsel did not render ineffective assistance by failing to object to
      the legality of the search of appellant’s backpack.
      Appellant further argues that his trial counsel rendered ineffective assistance
by failing to object to the legality of the search of appellant’s backpack. Although
defense counsel did not object to the legality of the officers’ search at the time
Gomez-Canada testified, defense counsel argued during closing argument that the
officers lacked probable cause to search appellant’s backpack.

      Under the principles set forth in Terry v. Ohio, 392 U.S. 1, 29 (1968), a police
officer may lawfully stop and briefly detain a person for investigative purposes if
the officer has a reasonable suspicion supported by articulable facts that criminal
activity may be afoot, even if the officer lacks evidence rising to the level of probable
cause. Cook v. State, 63 S.W.3d 924, 927 (Tex. App.—Houston [14th Dist.] 2002,
pet. ref’d). “The Fourth Amendment does not require a policeman who lacks the
precise level of information necessary for probable cause to arrest to simply shrug
his shoulders and allow a crime to occur or a criminal to escape.” Adams v. Williams,
407 U.S. 143, 145 (1972). An officer may also conduct a limited “pat down” of a
person provided the officer reasonably believes the person is armed and dangerous.
State v. Sheppard, 271 S.W.3d 281, 287 (Tex.Crim.App.2008) (citing Terry, 392
U.S. at 27–28). This is an objective determination made on the facts available to the
officer at the time of the pat down. Griffin v. State, 215 S.W.3d 403, 409 (Tex. Crim.


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App. 2006). Facts giving rise to reasonable suspicion may be supplied by
information from another person. Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim.
App. 2005).

      A detention based on facts supplied by a citizen-informer, which are
adequately corroborated by the detaining officer, does not violate the Fourth
Amendment. Brother v. State, 166 S.W.3d 255, 259 (Tex. Crim. App. 2005).
Corroboration does not require the officer personally observe the conduct giving rise
to a reasonable suspicion that a crime is being, has been, or is about to be committed.
Id. at 259 n.5 (citing Adams, 407 U.S. at 147). “Rather, corroboration refers to
whether the police officer, in light of the circumstances, confirms enough facts to
reasonably conclude that the information given to him is reliable and a temporary
detention is thus justified.” Id.

      Applying these principles to this case, the arresting officers acted justifiably
in responding to Brown’s information and detaining appellant. Gomez-Canada knew
Brown and believed his information was credible. After patting appellant down for
weapons and finding synthetic marijuana the officers were justified in looking in the
backpack where they received information that a weapon would be found. See
Adams, 407 U.S. at 145 (officers who received information that gun would be in
suspect’s waistband were justified in reaching into the vehicle and extracting the gun
even though their actions exceeded the scope of a pat down). Because the officers
were justified in conducting the search of appellant’s backpack any objection to the
legality of the search would have not had merit and could not serve as the basis for
a valid ineffective-assistance-of-counsel claim. See Thacker v. State, 999 S.W.2d 56,
67 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). Therefore, we conclude that
appellant has not satisfied the first prong of Strickland on his ineffective-assistance
complaint related to the failure to object to the legality of the search of the backpack.

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III.   Appellant has not established prejudice from any presumed ineffective
       assistance.
       Even if appellant established that trial counsel rendered ineffective assistance,
the question becomes whether appellant has affirmatively shown that the outcome
of the proceeding would have been different but for trial counsel’s error. See
Strickland, 466 U.S. at 693 (“[I]neffectiveness claims alleging a deficiency in
attorney performance are subject to a general requirement that the defendant
affirmatively prove prejudice.”).

       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 conditions of his community supervision.
See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). A revocation
hearing is not a criminal prosecution, and the degree of proof required to establish
the truth of the allegation in a motion to adjudicate guilt and revoke community
supervision is not the same. Hacker v. State, 389 S.W.3d 860, 864–65 (Tex. Crim.
App. 2013). Specifically, in a revocation hearing, the State must prove by a
preponderance of the evidence that the defendant violated a condition of his
community supervision. Rickels, 202 S.W.3d at 763. The State satisfies this burden
of proof when the greater weight of credible evidence before the trial court creates a
reasonable belief that it is more probable than not that the defendant has violated a
condition of community supervision. Id.

       Here, appellant’s admission in open court that he was carrying a gun satisfied
this burden. Therefore, by admitting the truth of the State’s allegation, appellant was
not prejudiced by trial counsel’s failure to object to allegedly inadmissible evidence
because he admitted in open court that he violated the conditions of his community
supervision by possessing a gun at the time of his arrest. That admission alone is


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sufficient to support the trial court’s adjudication of appellant’s guilt. See Guerrero
v. State, 554 S.W.3d 268, 273 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

      In light of the strength of evidence against appellant and his admission that he
possessed the gun in violation of the conditions of his community supervision, we
cannot conclude that there is a reasonable probability that the result of the proceeding
would have been different but for counsel’s alleged ineffective assistance. See West
v. State, 474 S.W.3d 785, 793–94 (Tex. App.—Houston [14th Dist.] 2014, no pet.)
(holding appellant failed to show prejudice when record contained ample evidence
of guilt). Accordingly, appellant has not met his burden to show he suffered
prejudice from any presumed deficiency in trial counsel’s performance. See
Strickland, 466 U.S. at 693. We overrule appellant’s sole issue on appeal.

                                    CONCLUSION

      Having overruled appellant’s sole issue, we affirm the trial court’s judgment.




                                        /s/    Jerry Zimmerer
                                               Justice



Panel consists of Justices Christopher, Wise, and Zimmerer.
Do Not Publish — Tex. R. App. P. 47.2(b).




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