      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00291-CR



                                Dwight Eugene Davis, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
            NO. CR21,562, HONORABLE ED MAGRE, JUDGE PRESIDING



                            MEMORANDUM OPINION


               In December 2007, Dwight Eugene Davis pleaded no contest to delivery of a

controlled substance less than one gram. See Tex. Health & Safety Code Ann. § 481.114(a), (b)

(West 2010). In accordance with the terms of a plea agreement, the trial court deferred adjudication

of guilt and placed Davis on community supervision for one year. In May 2008, the State filed a

motion to proceed with adjudication of guilt, and Davis pleaded true to all of the allegations in the

motion. Although Davis expressly waived preparation of a presentence investigation (“PSI”) report

during the initial plea proceedings, the trial court ordered that an updated PSI report be prepared

before sentencing. The updated PSI report was not completed because Davis did not submit to an

interview, and Davis absconded before the sentencing hearing in July 2009. Davis turned himself

in to authorities approximately nineteen months later, but when the case again proceeded to

sentencing, Davis’s court-appointed attorney neither requested an updated PSI report nor objected
to the sentencing hearing continuing without one having been prepared pursuant to the court’s order.

After a brief evidentiary hearing, the trial court sentenced Davis to two years’ imprisonment, which

is the maximum sentence available for his crime. See id.; Tex. Penal Code Ann. § 12.35 (West

2011). Davis’s motion for new trial was overruled by operation of law.

               On appeal, Davis contends that he was denied the effective assistance of counsel

during the sentencing proceeding because his appointed trial counsel (1) failed to ensure that the

court-ordered PSI report had been completed before his sentencing hearing and (2) failed to

investigate and call character witnesses from Davis’s Narcotics Anonymous (“N.A.”) program in

Houston, which he attended while fleeing from justice.1 Davis contends that, but for counsel’s

deficient performance, he probably would have received a sentence of less than two years’

imprisonment. We will affirm.

               To establish that he received ineffective assistance of counsel, Davis must show that

(1) counsel’s performance fell below an objective standard of reasonableness, and (2) there is a

reasonable probability that, but for counsel’s errors, the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Perez v. State, 310 S.W.3d 890,

892-93 (Tex. Crim. App. 2010); Branch v. State, 335 S.W.3d 893, 904-05 (Tex. App.—Austin 2011,

pet. ref’d). Merely showing that the alleged errors had some conceivable effect on the proceedings


       1
          Davis does not contend that his trial counsel was ineffective for failing to request that an
updated PSI report be prepared. See Tex. Code Crim. Proc. art. 42.12, § 9 (West Supp. 2011).
Rather, Davis contends that counsel was ineffective for failing to ensure that the court-ordered PSI
report had been completed. Any argument that he was entitled to a PSI report upon request would
be foreclosed by the Texas Court of Criminal Appeals’ opinion in Griffith v. State, 166 S.W.3d 261,
262 (Tex. Crim. App. 2005), which held that a defendant can waive the right to a PSI report during
the initial plea proceedings and the wavier remains effective for the sentencing proceedings
following revocation of community supervision.

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will not suffice. Strickland, 466 U.S. at 693; Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim.

App. 2011). The “benchmark for judging any claim of ineffectiveness must be whether counsel’s

conduct so undermined the proper functioning of the adversarial process that the trial cannot be

relied on as having produced a just result.” Strickland, 466 U.S. at 686. In all cases, the “ultimate

focus must be on the fundamental fairness of the proceeding.” Id. at 696.

               Assuming, without deciding, that counsel’s performance was deficient and not

motivated by sound trial strategy, we turn to the second prong of the Strickland inquiry, which

requires us to consider whether counsel’s allegedly deficient performance prejudiced Davis. Davis

alleges that he would probably have received a lesser sentence if an updated PSI report had been

prepared and character witnesses from his N.A. program had been called to testify about his recovery

from drug addiction. We conclude that the record does not support the conclusion that Davis met

the second prong of the Strickland test.

               The record shows that Davis pleaded no contest to the drug charge and true to all the

allegations in the motion to proceed with adjudication, including positive results for cocaine,

repeatedly failing to report to his probation officer, failing to perform community service hours, and

failing to pay court costs and probation fees. Significantly, it was undisputed that Davis knowingly

failed to appear at the sentencing hearing in July 2009 and remained a fugitive until February 2011,

when he voluntarily turned himself in to authorities. Davis testified that he absconded in order to

continue doing drugs, because he was a drug addict, but turned himself in after getting off drugs

and participating in the N.A. program for several months. Both Davis and a longtime friend,

Jack Cooper, testified that Davis had made positive improvements in recovery from drug addiction,

including participation in N.A., and that he was a skilled horse trainer and dentist, which provided

                                                  3
him an opportunity to earn an honest living. Trial counsel attempted to bolster Davis’s and Cooper’s

testimony with reference letters from twelve members of Davis’s N.A. program, and although those

letters were excluded as hearsay, Davis cites no evidence that these witnesses could have given that

was not duplicative of his and Cooper’s testimony. Davis also has not cited any information that

could have been disclosed in a PSI report that was not made available to the trial court at the

sentencing hearing. Based on the foregoing, we cannot say that there is a reasonable probability that

the outcome would have been different if trial counsel had ensured that an updated PSI report had

been completed and had presented live testimony from additional character witnesses.


                                          CONCLUSION

               We conclude that Davis has not established by a preponderance of the evidence that

he was prejudiced by trial counsel’s performance. Therefore, Davis has failed to demonstrate that

he received ineffective assistance of counsel. Davis’s sole issue on appeal is overruled, and the trial

court’s judgment is affirmed.



                                               _________________________________________

                                               J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Henson

Affirmed

Filed: August 9, 2012

Do Not Publish




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