Affirmed and Memorandum Opinion filed December 12, 2017.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-16-00910-CR
                               NO. 14-16-00911-CR

                    JAMES WILLIAM UTZMAN, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 338th District Court
                             Harris County, Texas
                   Trial Court Cause Nos. 1438869 & 1441645

                  MEMORANDUM OPINION


      Appellant James William Utzman pleaded guilty to possessing a controlled
substance and assaulting a public servant, and the trial court placed him on deferred
adjudication community supervision. Ultimately, the trial court adjudicated
appellant’s guilt for each offense. In three issues, appellant contends that his trial
counsel at the adjudication hearing rendered ineffective assistance of counsel. We
affirm.
                                I.     BACKGROUND

      The State alleged that appellant violated the terms and conditions of his
community supervision in both cases by (1) committing an offense against the laws
of the State, i.e., the offense of “Drug/Sales, Manufacturing and Possession,” and
(2) failing to obtain suitable employment and providing written verification. In the
assault case, the State also alleged that appellant violated the terms and conditions
by (1) failing to avoid injuries or vicious habits, i.e., using methamphetamine, and
(2) failing to pay a fine and court costs and being in arrears in the amount of $160.
In the possession case, the State alleged that appellant violated the terms and
conditions by failing to pay a supervision fee and being in arrears in the amount of
$78. Appellant pleaded “not true” to all of the allegations.

      The State adduced testimony from several witnesses, including appellant’s
probation officer and a chemist. The probation officer testified that appellant had
never been employed during the term of his probation. She testified that she observed
the results of a urinalysis field test performed at appellant’s hotel room, which
showed that appellant tested positive for methamphetamine.

      The chemist testified that she tested a substance recovered from appellant’s
hotel room, and it was 496.42 grams of testosterone cypionate. She testified that
testosterone is a controlled substance in penalty group three.

      Appellant testified that the items in his hotel room were for making “vapor
juice” or “E-juice” for use in personal vaporizers—an alternative to cigarettes. He
intended to sell the vapor juice in small vials. He testified that he was not behind on
paying fines and fees, but he admitted that it would be “fair” for the court to find
that he violated his community supervision based on his failure to show that he had
been employed.


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        The trial court found all of the State’s allegations “true.” Neither party
adduced additional evidence at punishment, and the court sentenced appellant to 180
days’ confinement in the possession case and five years’ confinement in the assault
case.

        The record contains no motion for new trial or associated hearing.

                                  II.    ANALYSIS

        In three issues, appellant contends that trial counsel rendered ineffective
assistance by (1) failing to challenge the reliability and admissibility of the field
urinalysis test, and eliciting unqualified expert testimony from the probation officer
regarding the reliability of the test; (2) not cross-examining the chemist regarding
her methodology or her decision to test only one of the items seized from the hotel
room; and (3) failing to present mitigating evidence during the punishment phase.

A.      Standard of Review and Legal Principles

        To prevail on a claim of ineffective assistance, an appellant must show that
(1) counsel’s performance was deficient by falling below an objective standard of
reasonableness and (2) counsel’s deficiency caused the appellant prejudice—there
is a probability sufficient to undermine confidence in the outcome that but for
counsel’s errors, the result of the proceeding would have been different. See
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); Perez v. State, 310
S.W.3d 890, 892–93 (Tex. Crim. App. 2010). An appellant must satisfy both prongs
by a preponderance of the evidence. Perez, 310 S.W.3d at 893.

        Generally, a claim of ineffective assistance may not be addressed on direct
appeal because the record usually is not sufficient to conclude that counsel’s
performance was deficient under the first Strickland prong. See Andrews v. State,
159 S.W.3d 98, 103 (Tex. Crim. App. 2005); see also Salinas v. State, 163 S.W.3d

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734, 740 (Tex. Crim. App. 2005) (“A reviewing court will rarely be in a position on
direct appeal to fairly evaluate the merits of an ineffective assistance claim.”).
“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. “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. (quotation omitted).

      We must presume that trial counsel’s performance was adequate unless the
challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” State v. Morales, 253 S.W.3d 686, 696–97 (Tex. Crim. App. 2008)
(quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). To
overcome the hurdle of establishing deficient performance on direct appeal, “the
record must demonstrate that counsel’s performance fell below an objective standard
of reasonableness as a matter of law, and that no reasonable trial strategy could
justify trial counsel’s acts or omissions, regardless of his or her subjective
reasoning.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).

B.    Urinalysis Test and Cross-Examination of Probation Officer

      In his first issue, appellant contends that trial counsel was ineffective by not
challenging the reliability and admissibility of the urinalysis test and by eliciting
unqualified expert testimony from the probation officer.

      By failing to challenge the admissibility of the scientific evidence concerning
the urinalysis test in the trial court, appellant never placed the burden on the State to
establish the reliability of the test. See State v. Esparza, 413 S.W.3d 81, 86 (Tex.
Crim. App. 2013). Appellant has not demonstrated that the trial court would have
committed harmful error in overruling an objection to the urinalysis evidence if trial
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counsel had objected. See DeLeon v. State, 322 S.W.3d 375, 381 (Tex. App.—
Houston [14th Dist.] 2010, pet. ref’d) (“To establish ineffective assistance of counsel
based on a failure to object, appellant must demonstrate that the trial court would
have committed harmful error in overruling the objection if trial counsel had
objected.”). Accordingly, appellant has not shown deficient performance based on
trial counsel’s failure to challenge the reliability of the urinalysis test. See id.

       Regarding trial counsel’s cross-examination of the probation officer, appellant
contends that counsel bolstered the probation officer’s testimony as follows:

       Q. You stated that you did not personally perform the U.A. but you saw
       the result; is that correct?
       A. Yes, sir.
       Q. Is that test a hundred percent accurate?
       A. From what I’m guessing it is, yes.
       Q. So you’re guessing?
       A. We use them, and we go with the results. Uh-huh.
       Q. You’re guessing it’s a hundred percent accurate?
       A. It’s accurate. And we send it off to the lab for confirmation, and they
       usually come back positive.
       Q. Would it be a fair statement to say that those tests can give a false
       positive?
       A. I’ve never seen one.
       The method of cross-examination is “an art, not a science, and it cannot be
adequately judged in hindsight.” Ex parte McFarland, 163 S.W.3d 743, 756 (Tex.
Crim. App. 2005). Trial counsel could have believed reasonably that this cross-
examination of the probation officer undermined her credibility and the evidence of
appellant’s use of methamphetamine—the probation officer admitted to “guessing”
about the accuracy of the urinalysis and that lab tests “usually” confirm the
urinalysis. Appellant’s suggestion that cross-examination should have been

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conducted in a different way does not rebut the presumption that counsel’s conduct
fell within the wide range of reasonable professional assistance. See id.; see also
Resendiz v. State, 112 S.W.3d 541, 547–48 (Tex. Crim. App. 2003) (holding that the
defendant did not rebut the presumption of reasonable professional assistance when
the defendant claimed that trial counsel failed to effectively cross-examine the
State’s expert about reliability).

      Appellant’s first issue is overruled.

C.    Cross-Examination of the Chemist

      In his second issue, appellant contends that trial counsel was ineffective by
failing to adequately cross-examine the chemist regarding her methodology or
decision to test only one of nine items that were seized.

      Appellant has not demonstrated that the chemist’s testimony was
inadmissible, as required to prove ineffective assistance regarding a failure to
challenge the admissibility of the testimony. See DeLeon, 322 S.W.3d at 381. Nor
has appellant rebutted the presumption of reasonable professional assistance by
merely claiming that cross-examination should have been conducted in a different
way. See Ex parte McFarland, 163 S.W.3d at 756; Resendiz, 112 S.W.3d at 548.
The record does not affirmatively demonstrate that counsel was deficient for not
questioning the chemist about untested items or the methodology of the testing.

      Appellant’s second issue is overruled.

D.    Mitigating Evidence

      In his third issue, appellant contends that trial counsel was ineffective for
failing to present any evidence to mitigate punishment. Appellant compares this case
to Milburn v. State, 15 S.W.3d 267, 270 (Tex. App.—Houston [14th Dist.] 2000,
pet. ref’d). In Milburn, the defendant presented evidence at a hearing on a motion

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for new trial. See id. at 269. The parties stipulated that twenty of the defendant’s
relatives and friends would have testified that they had known the defendant a long
time and that the jury should have considered the minimum punishment. Id. The
witnesses would have testified at trial if they had been requested to do so, but trial
counsel never contacted them. Id. In particular, the defendant’s fiancée and employer
would have testified favorably for the defendant. See id. at 269–70.

      Appellant, however, has not identified any mitigating evidence that his trial
counsel should have presented. In the absence of a showing that evidence would
have been available and favorable to appellant, he cannot establish ineffective
assistance based on a failure to present mitigating evidence. See Bone v. State, 77
S.W.3d 828, 834–35 (Tex. Crim. App. 2002) (holding that trial counsel was not
ineffective for failing to produce more mitigating evidence when the record did not
show that other mitigating evidence existed); Marvaiz v. State, 840 S.W.2d 415, 434
(Tex. Crim. App. 1992) (“[S]ince appellant does not explain what mitigating
evidence his trial counsel should have proffered, we cannot possibly find that a
failure to proffer such evidence constituted ineffective assistance.”); see also, e.g.,
Robinson v. State, 514 S.W.3d 816, 824 (Tex. App.—Houston [1st Dist.] 2017, pet.
ref’d) (“A defendant complaining about trial counsel’s failure to call witnesses must
show the witnesses were available and that he would have benefited from their
testimony.” (quotation omitted)).

      Appellant’s third issue is overruled.




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                               III.   CONCLUSION

      Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.




                                      /s/       Ken Wise
                                                Justice



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




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